Co-authored by Rebecca Pratt Bromet and Ashley Choren Workman
Today the Supreme Court granted the cert petition filed in Busk v. Integrity Staffing, agreeing to answer the question of whether time spent by workers in security screenings is compensable under the FLSA and the Portal-to-Portal Act. (See Cert Petition; Docket). Importantly, the Supreme Court will (hopefully) address the larger issue of the definition of “work” under the FLSA, which the Court has been tentative to discuss for decades.
As we previously discussed here, this case has implications for every employer that requires employees to pass through security screenings before or after their regular work shift. Such employers historically have relied upon a pair of 2007 decisions from the Second and Eleventh Circuit, titled Gorman v. Consolidated Edison Corp. and Bonilla v. Baker Concrete Construction, both of which held that time spent by employees in security screening was not compensable under the FLSA. The Ninth Circuit distinguished Gorman and Bonilla, finding that those cases involved government-mandated security screening, whereas the Busk case did not.
The Ninth Circuit’s decision in Busk already has caused an onslaught of litigation challenging the compensability of time spent in security screenings. If the Supreme Court affirms the Ninth Circuit’s decision, courts may be flooded with even more litigation, and threatens to impose massive retroactive liability on employers. By contrast, if the Supreme Court reverses the Ninth Circuit’s decision, it will not disrupt the realities of the modern workplace and will make clear that security and safety screenings are essentially a part of every employee’s commute to and from work.
Employers work to comply with the FLSA, but employers need to know what compliance means. Given that the FLSA does not even define the concept of “work,” employers rely heavily on courts to interpret the FLSA, providing necessary compliance guidance. Where, as here, different courts have different interpretations, it is time for the Supreme Court to weigh in. Employers need a sense of security that their pay practices comply with the FLSA’s often complex statutory and regulatory requirements, especially as applied to a continually changing workplace.
We will continue to follow the Busk case on this blog. This case will not be decided in the current Supreme Court Term. Rather, it will be decided sometime after October 2014.