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U.S. Supreme Court Weighs in on

Definition of an Employee Workday

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 Background: During World War II when labor markets and labor unions had a
lot of leverage, employees, and often their unions, insisted on being paid for
"preliminary" and "postliminary" work activities. An example is the time
required to put on and take off a work uniform.
One labor dispute on this issue wound up in the Supreme Court, and the
Court's ruling,1 made in 1946, was vague. Congress believed the situation was
getting out of hand, and passed a law called the Portal to Portal Act in 1947 in
an effort to clarify the rules. However, that law was ambiguous, leading to
another ruling2 by the Supreme Court in 1956. In that case, the Court held
that employees should be paid for activities that are "integral" to work.

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"Integral to Work" Standard

"Integral to work" has been interpreted to include activities such as showering
to remove toxic chemicals after a day's work in a battery factory, and, in the
case of butchers in a meat packing plant, sharpening their knives. The rationale
was that a failure to do these tasks would slow down production on the
assembly line, affect the appearance of the meat as well as the quality of the
hides, cause waste and lead to accidents.

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Flash-forward to the present. On December 9, 2014, the Supreme Court

released its unanimous opinion in Integrity Staffing Solutions v. Busk, (No. 13433), addressing the same issue with a different set of facts. The issue was
whether workers should be paid for time they spent waiting to go through a
security screening checkpoint after work. That involved removing their wallets,
keys and belts and walking through a metal detector.

The case was brought by Jesse Busk, who was employed by a staffing agency
and worked at an Amazon warehouse in Las Vegas. Amazon uses the post-work
screening procedure to guard against employee theft, as many retailers do. It
might not have been a big enough deal to land in the courts if the screening
process went quickly. It did not, according to Busk.

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A Concurring Opinion That Adds Clarity

Before being heard in the Supreme Court, the Busk case began in a District
Court, where it was dismissed. Plaintiffs next sought help from a Court of
Appeals for the Ninth Circuit. The Appeals Court agreed with the plaintiffs in
part, and reversed the District Court's decision. They reasoned that the
screenings were mainly for the benefit of the employer, therefore, employees
should be paid for the time.
The case was then taken up by the Supreme Court. In a unanimous decision,
the justices found in favor of the employer.
Though she joined her fellow justices in the unanimous decision, Justice
Sotomayor added her own opinion to Justice Thomas's writing. Clarifying the
opinion somewhat, she likened the security check to simply getting in and out
of the place of employment. "The searches were part of the process by which
the employees egressed their place of work, akin to checking in and out and
waiting in line to do so -- activities that Congress clearly deemed to be
preliminary or postliminary."

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Screening Wait Time

Justice Clarence Thomas authored the decision in this class action suit. He
wrote that Busk and other plaintiffs "alleged that such time amounted to
roughly 25 minutes each day and that it could have been reduced to a de
minimisamount by adding more security screeners or by staggering the
termination of shifts so that employees could flow through the checkpoint
more quickly."

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Prior to the ruling, an Amazon employee quoted in a news article said, "The
place has really tight security. TSA [Transportation Security Administration] has
nothing on Amazon.
Busk knew that the law stipulates that "postliminary" activities must be closely
linked to work in order to be compensable. Thus, as Justice Thomas recounts,
the plaintiffs "also alleged that the screenings were conducted 'to prevent
employee theft' and thus occurred 'solely for the benefit of the employers and
their customers.'"

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Tied to Productive Work?

Thomas and his colleagues did not buy the argument. The activity in question
must be "an intrinsic element of the job" and "tied to the productive work that
the employee is employed to perform.
The bottom line for the court, in Thomas' opinion, was that "Integrity Staffing
could have eliminated the screenings altogether without impairing the
employees' ability to perform their work.

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The ruling does not constitute a get-out-of-jail-free card for employers,

however. The question of what constitutes an activity that's "an intrinsic
element of the job" may always be a matter of opinion. To be safe, play out the
arguments that might be raised asserting that any preliminary or postliminary
tasks you require or are thinking about requiring employees to do off the clock
pass that "intrinsic element" test.

Also, consider the amount of time involved. As noted, if those Amazon

warehouse employees were always able to whiz through the screening
machine, the case might never have been brought.

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