As we posted here, the Supreme Court recently brought clarity to the issue of compensable time under the Fair Labor Standards Act (“FLSA”), defining the term “changing clothes.” The Supreme Court is now set to hear a similar question and decide whether time spent in security screenings by a staffing company’s employees is compensable under the FLSA. A decision by the Supreme Court could resolve a circuit split on the issue.

Former employees of Integrity Staffing Solutions, Inc., a staffing company for clients such as, filed an action on behalf of a putative class of workers alleging that Integrity violated the FLSA by requiring employees to pass through a security screening at the end of each shift without compensating employees for that time. The United States District Court for the District of Nevada granted Integrity’s motion to dismiss, holding that the time spent in security screenings was not compensable under the FLSA. The United States Court of Appeals for the Ninth Circuit reversed, holding that the District Court improperly relied upon decisions from the Second and Eleventh Circuits in finding a “blanket rule” that time spent in security screenings was not compensable.

The Ninth Circuit’s decision noted that, although “preliminary” and “post-liminary” activities are generally not compensable, those activities are compensable if they are “integral and indispensable” to an employee’s principle activities. The Ninth Circuit distinguished the decisions from the Second and Eleventh Circuits on the grounds that those decisions involved a requirement that employees who entered the workplace had to pass through security clearance, while Integrity required employees leaving the workplace to pass through clearance, which the plaintiffs alleged was intended only to prevent employee theft. The Ninth Circuit, therefore, held that the security screenings were necessary to the work the plaintiffs performed, were for the benefit of Integrity, and were “integral and indispensable” to their principle activities.

Integrity’s petition asks the Supreme Court to resolve the circuit split created by the Ninth Circuit’s decision, arguing that the Ninth Circuit’s decision is “clearly wrong” and in conflict with the better-reasoned decisions of other circuits. Integrity’s petition also asks the Supreme Court to eliminate the potentially massive retroactive liability created for employers by the Ninth Circuit’s decision, pointing to several class actions filed in the wake of that decision.