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Supreme Court Declares Security Screening Noncompensable Under FLSA

on Wednesday, 28 January 2015 in Labor & Employment Law Update: Sarah M. Huyck, Editor

The time employees spend waiting for and undergoing an employer’s security screening is not compensable under the Fair Labor Standards Act of 1938 (the “FLSA”). In Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court found in favor of Integrity Staffing Solutions (“Integrity”), a company that provided warehouse staffing to Former hourly employees of Integrity brought a class action against the company for alleged violations of the FLSA and Nevada labor laws. Specifically, these former employees argued they were entitled to compensation under the FLSA for the time they devoted to antitheft security screening before leaving work each day. The employees alleged they spent approximately 25 minutes each day going through Integrity’s screening.

In Integrity, the Court revisited Congress’s 1947 Portal-to-Portal Act. This Act exempts employers from FLSA liability for claims based on activities that are preliminary or postliminary to the principal activities an employee is employed to perform. The Court explained the terms in this Act, stating the term “principal activities” includes activities that are an “integral and indispensable part of the principal activities.” The Court further stated an activity is “integral and indispensable” if “it is an intrinsic element of the employee’s principal activities and one which the employee cannot dispense if he is to perform his principal activities.”

After laying out the terms in the Portal-to-Portal Act, the Court found in favor of Integrity on multiple grounds. First, the Court said Integrity’s security screenings were not principal activities the warehouse employees were employed to perform. In other words, Integrity did not hire its employees simply to undergo antitheft screenings, but instead Integrity hired these employees to retrieve products from warehouse shelves and package those products for shipment. Second, the Court said the security screenings were not “integral and indispensable” to the employees’ retrieval and shipment of warehouse items. Lastly, the Court quickly dismissed the employees’ final argument—that the security screenings were compensable because Integrity could have reduced the screening time to a de minimis amount. The Court said even if an employer could reduce the amount of time spent on security screening, this would not change the nature of a security screening or its relationship to the principal activities the employees are employed to perform.

Integrity provides peace of mind to employers who use comparable security screening. But more than that, the Supreme Court provided clarity in the test for determining whether preliminary and postliminary activities are compensable by requiring that they constitute an “intrinsic element” of the principal activities and “one with which the employee cannot dispense if he is to perform his principal activities.” It is not enough that the activities be required by and for the benefit of the employer.

Allison D. Balus

Sara A. McCue

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