The Supreme Court is set to hear arguments in Staffing Solutions Inc. v. Jesse Busk et al., on whether the time spent in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act of 1947, which will resolve a circuit split created by the Ninth Circuit’s decision involving warehouse workers.

On March 3, 2014, the Supreme Court granted certiorari to Integrity Staffing Solution’s appeal of the Ninth Circuit’s April 12, 2013 opinion in a purported class action lawsuit brought against Integrity, who provides staffing for warehouses owned by

The Plaintiffs in the suit primarily perform the job duties of retrieving items from inventory to fill orders placed by customers. After punching out at the end of their shifts, the workers were required to go through a brief security screening in which they removed their personal belongings from their pockets and went through a metal detector.

The District of Nevada granted Integrity’s motion to dismiss, finding that the time spent walking through the screening was not “integral or indispensable” to the workers’ principal activities of “fulfilling online purchase orders.” However, the Ninth Circuit reversed, holding in a sharp departure from what had been considered a settled area of the law, that the security screenings were compensable under the FLSA because they were “required” by Integrity and were done “for Integrity’s benefit.”

The Ninth Circuit’s decision conflicts with decisions from the Second and Eleventh Circuits holding that employees were not entitled to compensation for time spent in security screenings. Integrity argued that it was “critically important” that the Supreme Court resolve the Circuit split, because “[i]f allowed to stand, the Ninth Circuit’s decision threatens to impose massive retroactive liability on employers, and to render the Portal-to-Portal Act… largely toothless.” Integrity argues that the Portal-to-Portal Act’s plain language establishes that a worker’s “preliminary” and “postliminary” activities are not covered by the FLSA.

According to Integrity’s petition, “in the last six months since the [Ninth Circuit’s decision], plaintiff’s lawyers have brought nationwide class actions against a number of employers – including Apple, and CVS – seeking back pay (plus overtime and penalties) for time spent in security screenings.”