The U.S. Supreme Court, in a rare unanimous decision earlier this week in Integrity Staffing Solutions v. Busk, held that time spent by warehouse employees at Amazon.com warehouses waiting to go through security checks at the end of their shifts was “postliminary” activity not compensable under the federal Fair Labor Standards Act (“FLSA”) and its major amendment, the Portal to Portal Act (“PPA”). While Busk may provide welcome clarity for employers who wish to implement such screens, the case probably does little to radically change the analysis of compensability of other pre- and post-shift activities beyond its narrow set of facts.
Amazon.com’s Warehouse Security Checks
Integrity Staffing is a staffing agency that provides employees to Amazon.com. Those employees work in the company’s warehouses pulling products from shelves and getting them packaged for mailing to buyers. Because of concerns related to employee theft, Integrity Staffing required employees to go through security checks before leaving the warehouse at the end of their shift, but did not pay employees for that waiting time. Waiting in line and going through these security checks took about 25 minutes.
The employees sued, claiming that time was compensable under the FLSA. The trial court granted Integrity Staffing’s motion to dismiss, finding the time was not compensable as a matter of law. The Ninth Circuit reversed, finding that normally noncompensable preliminary or postliminary time can be compensable when it is required by the employer and for the employer’s benefit, as these security checks are.
The U.S. Supreme Court reversed the Ninth Circuit, and specifically rejected its reliance on whether the postliminary task was required by the employer or for its benefit. Instead, Justice Thomas’ opinion emphasized the text of the FLSA and PPA and prior cases that focused on analyzing whether the security screens were an “integral and indispensable part of the principal activities” the employees were hired to do, in other words: could the employees perform their primary job task without participating in the security screens?
Finding that the employees’ primary job activity in this case was to get orders from warehouse shelves and prepare them for mailing to customers (and not to go through security screens), the Court reasoned that the time spent in security screens was not “integral and indispensable” and therefore not compensable postliminary activity. Justice Thomas also pointed to the fact that when Congress amended the FLSA with the PPA in 1947, the entire point was to make non-integral “preliminary” or “postliminary” activities noncompensable.
So Where is the Pre- or Postliminary Line after Busk?
Busk settles the narrow question of the compensability of time related to undergoing post-shift security checks, and in that regard is consistent with other similar rulings related to pre-and post-shift waiting time. But while Busk is undoubtedly a decision many employers will welcome, it is unclear how much guidance it provides to the compensability of other types of pre- and post-shift activities. As any employment lawyer (or trial court judge) knows, class action wage and hour litigation has exploded over the past decade, particularly related to “working off the clock.” As a result of the volume of cases and equally varied factual scenarios those cases address, courts have struggled to come up with clear rules about what is compensable time at the fringes of the workday. For example, Busk did not disrupt one of the Court’s previous significant decision involving preliminary and postliminary time, IBP Inc. v. Alvarez from 2005. In IBP, the Court split the baby by finding that pre- and post-shift time spent wearing required extensive protective gear at a meatpacking plant was compensable—including walking to a workstation after donning protective gear at the beginning of a shift and waiting to remove it at the end of the shift—but that time spent waiting to put on protective gear before the shift was not. On the other hand, last year in its decision in Sandifer v. U.S. Steel, the Court concluded that donning or doffing routine clothing that may also serve as personal protective equipment, such as gloves or a hard hat, may not be compensable pursuant to a collective bargaining agreement (CBA).
Sometimes distinguishing between these different variations of similar activities can be difficult. For example, in addition to the distinctions discussed above courts have found that the following are examples of pre- and post-shift tasks integral to the employees’ principal activities and therefore compensable:
- Employees at meatpacking plant who spend time sharpening knives before their shift, because dull knives would affect the quality of cuts, slow down production, and present safety hazards.
- Washing, showering and changing clothes before and after shifts at a chemical plant where exposure to toxic chemicals is harmful to health.
- Walking to a workstation after donning protective clothing.
In contrast, some examples of noncompensible preliminary or postliminary tasks include:
- Waiting to put on protective gear before a shift (although time spent actually putting on the protective gear, or taking it off after a shift, is compensable).
- Waiting for and undergoing pre-shift safety checks at a rocket fuel plant that checks for matches, lighters, and other items that posed a serious safety concern in that workplace.
Further, in holding that it did not matter that the employer required the security checks, Busk may cast into doubt the long-held rule of thumb that if it was required by the employer, it was compensable “work time.” For example, what if a manufacturer requires employees to participate in pre-shift calisthenics as a teambuilding exercise before clocking in? It’s not “integral” to manufacturing work (and workers could do their jobs without it).
Until lower courts address particular factual situations and specifically find them to be noncompensable, the safest thing even after Busk is still to err on the side of treating this type of pre- or post-shift time as compensable, especially where it’s required or arguably “integral” to employees’ “primary activities.” Finally, don’t forget that state wage laws can differ markedly from the FLSA on some of these questions. If the state law is more favorable for the employee, Busk would have no impact on requirements under state law.
Employers may want to consult with their employment counsel before making any changes to payroll or wage and hour practices in light of Busk.