(“I will respect precedent!” –members of the conservative majority on the Supreme Court whispered quietly into the wind as they raced back to the partisan enclaves they crawled out of…)
By Kasey Burton
Extern, National Employment Lawyers Association
On October 8, I attended the oral argument at the U.S. Supreme Court in the case of Integrity Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees should be paid for time they spend, after their shifts are over, waiting to complete a mandatory security screening used to see if the employees are trying to steal anything. Workers at Amazon.com warehouses, employed by Integrity Staffing, are required to undergo a mandatory search of their body and belongings before being permitted to leave the facility. The search, which is similar to that conducted at airports, requires employees to empty their pockets, have their bags searched, and walk through a metal detector. Long lines often form at the screening stations, requiring workers to wait up to 25 minutes before they can leave the premises.
Although this case will address the specific issue of whether warehouse employees must be compensated for anti-theft inspection of their person and belongings and the waiting time involved, the impact of the Court’s decision will likely be far broader. As counsel for the workers Mark R. Thierman said, this is about Integrity Staffing’s attempt to push the line of compensation to encompass less and less. (The workers are also represented by Professor Eric Schnapper, University of Washington School of Law.)
Counsel for Integrity Staffing Paul D. Clement characterized the wait time as simply a “logical part of the egress process” that did not merit compensation. He argued that the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, requires the screening to be an “integral and indispensable” component of the workers’ “principal activities” in order to mandate compensation under the law. Clement repeatedly asserted that the screenings were in no way “integral and indispensable” to the work the employees performed. He compared the screening to checking out at the end of the workday—an activity for which employees are not compensated.
Curtis E. Gannon, Assistant to the Solicitor General, arguing for the government, agreed. He urged the Court to find that the screening failed to rise to the level of compensable activity. When pressed by Justice Ruth Bader Ginsburg for an example of how invasive a security screening had to be before it could be compensable, Gannon stumbled, eventually capitulated, and stated that he could not provide a specific example of when a screening would cross the line into compensable territory.
Thierman reframed the discussion, distilling the Court’s inquiry to two questions: Is it work? If it is work, is it a “principal activity” requiring compensation? Although Justice Samuel Alito chastised Thierman for failing to argue whether the screenings were “integral and indispensable” to the employees’ work of packing and shipping merchandise, Thierman persevered, picking up steam as he continued. He focused his argument on the practical realities of the security screenings, arguing that they went far beyond a basic check-out process. He explained that had the employees been required to remain at their workstations for screeners to inspect them, the time would certainly be compensable. The warehouse workers, he explained, are “engaged to wait.” Because they are required to wait for up to 25 minutes each workday to be screened, he argued, they must be compensated for their time.
The Justices, based on their questions and comments, appeared to be split along predictable lines, with Justice Anthony Kennedy’s vote hanging in the balance. The conservative justices appeared concerned with the abstractions of the law, while the liberal justices aimed to reconcile the law with the practical realities of the retail workplace in the 21st Century. Justice Elena Kagan focused her questioning on the anti-theft nature of the screenings, categorizing the screening procedure as inventory control. Justice Ruth Bader Ginsburg asked about what appeared to be the intentional shortage of screening staff that, as she noted, shifted the cost of conducting the screenings onto the employees who were forced to wait. Justices John Roberts and Antonin Scalia both insisted that a “principal activity” could not include going through a security screening, because a “principal activity” must be an important, central function of the job.
Justice Kagan asked one of the more interesting questions, positing a hypothetical based on real life. She said that there was a judge years ago in New York who required his law clerks to arrive early every workday to cut up his grapefruit and make his breakfast. She wondered whether the government thought that was compensable time. Gannon had to concede that it was.
Kasey Burton is a third year law student at the University of Washington School of Law, in Seattle. She is externing at the National Employment Lawyers Association, an AFJ member organization, which filed an amicus brief in this case.