At Work, But Off the Clock: Supreme Court Tackles Mandatory, Unpaid Security Checks

Your shift is done, but you can’t leave.  You have to pass through a security screening to ensure that you did not steal any goods during the workday. Are you still on the clock? And, if so, are you earning overtime if this waiting puts you passed the eight hour mark? These are the questions before the Supreme Court in Integrity Staffing Solutions Inc. v. Busk, a major test of labor law with billion-dollar implications for American retailers.  

The case is focused on a Nevada contractor who handles warehouse storage and logistics for, but lawsuits against CVS, Amazon, and Apple could be impacted should the justices rule in favor of the workers. Backpay settlements through class action would be the logical next step.

Because of the implications of the case, Integrity Staffing Solutions is bringing in a heavy-hitting legal team that features Paul Clement, former Solicitor General under George W. Bush. At the heart of the matter is whether standards set by the Supreme Court in the 1950’s are still effective in the modern workplace.  

A brief history of the precedent for the case comes from MSNBC:

In the 1956 case Steiner v. Mitchell, the Supreme Court ruled that workers must only be paid for those activities which are an “integral and indispensable part of the principal activities for which covered workmen are employed.” The time spent passing through security checks is equivalent to the time they spend eating lunch or commuting to work, they argued: A task the employees might need to perform in order to do their job, but not one that’s actually central to the central to why the company employs them.

The 9th Circuit rejected this line of reasoning and sided with the plaintiffs because, it reasoned, the process of going through security checks is “integral and indispensable.” The essential work of the warehouse employees is ensuring that products ordered on get properly stored and shipped to their owners without becoming damaged or going missing; hence the 9th Court ruled that “the security clearances are necessary to the employees’ primary work as warehouse employees and done for Integrity’s benefit.”

Mark Thierman, the attorney representing Jessie Busk and Laurie Castro, summed up his argument to MSNBC thusly:

“I think the issue is simple: When an employer tells you to do something, it’s work, and you ought to get compensated for it.  Unless there’s a specific carve-out. There are some carve-outs for traveling, commuter time, and some other carve-outs for quasi-voluntary activities.”

The interested parties backing Integrity Staffing Solutions have not been entirely surprising. They include the National Retail Federation and the U.S. Chamber of Commerce. But one unexpected voice has entered the anti-worker picture: the federal government, which filed amicus briefs siding with the company arguing that:

…security screenings are not “integral and indispensable” to the work performed by the warehouse employees. It says the screenings at the end of employee shifts “were not closely intertwined with their principal activity of filling orders in the warehouse.”

The administration also cites a Labor Department opinion letter that makes no distinction between searches for general security and those to prevent theft, finding neither requires pay.

The AFL-CIO, on the other hand, has filed an amicus supporting Busk and Castro. The stakes for workers are incredibly high despite limited coverage of the issue until just recently, according to Marquette University labor law professor Paul Secunda:

“I think it’s one of the most under-appreciated cases of the term, because it’s so arcane and technical that people don’t understand the dollars and cents that are involved.  We’re literally talking about billions of dollars here, because so many employers require their employees to go through some kind of security screening.”

Oral arguments in the case began Wednesday.

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