Federal Law Does Not Require Payment for “Postliminary” Activities

Earlier this week, the United States Supreme Court recently determined the federal Fair Labor Standards Act (“FLSA”) does not require employers to pay workers for time spent going through security screenings as they leave work. Plaintiffs alleged that they were required to go through the security checks each day after they clocked out and would wait in line for up to 25 minutes. The Court held that waiting in the security line was not “integral and indispensable” to the performance of productive work that the employees were employed to perform, making it non-compensable under federal law.

The case involved employees of Integrity Staffing Solutions, Inc. who worked at Amazon.com warehouses in Nevada. Employees would locate merchandise and prepare it for shipment. The security screenings were implemented to reduce loss from merchandise theft. Plaintiffs argued that this activity should be compensated because it was required by the employer and it was for the employer’s benefit. The Court disagreed.

According to the Court, a federal law called the Portal-to-Portal Act specifically excludes from compensation activity that is “preliminary” and “postliminary” to the actual work performed (i.e., donning and doffing work uniforms), as well as time spent traveling to the place where work is performed (i.e., walking from a time clock to a workstation). The security screenings were found to be postliminary to the primary activity the employees were hired to perform, which was to collect merchandise for shipping, because the screenings were neither the primary activity nor were they integral and indispensable to the primary activity. The employer could eliminate the screening process without affecting the work the employees performed, so it was not indispensable. The Court contrasted the screenings with donning/doffing safety equipment, which would be compensable if the job could not be performed safely or effectively without it. In that situation, donning/doffing would be indispensable to the work the employee was hired to perform.

It is important to note that this decision examined only federal law, not state law, and most states do not have an exclusionary rule similar to the Portal-to-Portal Act. On remand, the District Court of Nevada will reconsider Plaintiffs’ state law claims. Although the time spent going through the security screenings are not compensable under federal law, they may be compensable under Nevada state law.

Advice to Employers

California
Employees in California must be compensated for the time spent going through security screenings like those at issue in Busk. California law is clear that “hours worked” includes all time an employee is subject to the control of an employer. Further, there is no exclusion like the Portal-to-Portal Act. Make sure employees are compensated for this type of activity.

Nevada
Whether Nevada employees must be compensated for the time spent going through security screenings is still an open question. Nevada law provides that employees must be compensated for each hour worked, but “hours worked” is not defined by statute or case law. The Busk trial court will consider what “work” means under Nevada law when the case is remanded. It is worth noting that the California and Nevada laws for compensating employees use very similar language and the Plaintiffs cited to California authority in their appellate briefs. It is possible that the Nevada court will adopt a definition of “hours worked” that is similar to California’s. For that reason, it is advisable for Nevada employers to compensate employees for this type of activity.

Case: Integrity Staffing Solutions, Inc. v. Busk, Dec. 9, 2014, No. 13-433.