In October, we profiled Integrity Staffing Solutions, Inc. v. Busk, a case asking whether time spent in security screenings is compensable under the Fair Labor Standards Act (FLSA). Warehouse workers sued Integrity Staffing under the FLSA for uncompensated time they were required to spend in lengthy security screenings (lasting up to 25 minutes) at the end of their shifts during their assignments to work in Amazon warehouses. At the time, we suggested that it would be “hard to envision a result different” from last term’s Sandifer v. U.S. Steel case. This prediction came true, but from a unanimous Supreme Court, rather than a sharply divided one. The Court held that the employees at Integrity Staffing Solutions facilities in Nevada could not claim compensation for the time spent going through security screenings aimed at protecting against theft because these activities were not integral and indispensable to their principal duties.
In a short opinion written by Justice Thomas, the Court reversed the Ninth Circuit’s ruling that we discussed in October, and agreed with the district court’s original analysis, as well as the rationale in decisions from the Second and Eleventh Circuits, by finding that the screenings were not the principal activities the employees were employed to perform. As the Justices had hinted at during oral argument, the decision explained that Integrity Staffing did not hire employees to go through security screenings but to retrieve products from the Amazon warehouse shelves and package them for shipment. These security screenings were not integral and indispensable to the “performance of productive work,” as the FLSA regulations require. The Court observed that, unlike requiring pre-shift donning and doffing of protective gear, Integrity Staffing could have completely eliminated the security screenings altogether without impairing the safety or effectiveness of the employees’ principal activities.
Under the FLSA, as amended by the Portal-to-Portal Act, employers generally need not compensate employees for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.” The FLSA distinguishes between activities that are essentially part of the ingress and egress process and those that constitute the actual “work of consequence performed for an employer.” Finding the security screenings were clearly part of the former, the Court cited an early Department of Labor opinion interpreting the Portal-to-Portal Act in 1951, where the Department had found non-compensable a pre-shift security search of employees in a rocket-powder plant “‘for matches, sparkproducing devices such as cigarette lighters, and other items which have a direct bearing on the safety of the employees,’” as well as a post-shift security search of the employees done “‘for the purpose of preventing theft.’” The Department of Labor had drawn no distinction between the two types of searches (employee safety versu theft prevention), finding them both non-compensable under the Portal-to-Portal Act.
The Court also expressly rejected the Ninth Circuit’s test, which had focused on whether an employer required an employee to engage in a particular activity. The Court explained that by failing to tie activities to the employee’s performance of productive work, the Ninth Circuit had broadened the definition of “principal activities” to include “the very activities that the Portal-to-Portal Act was designed to address” and exclude from compensation. The Court also dispatched the employees’ argument that Integrity Staffing violated the FLSA because it could have acted to reduce the time spent in the security screenings to a de minimis amount. The Court found this decision had no bearing on the FLSA analysis and was an issue “properly presented to the employer at the bargaining table, not to a court in an FLSA claim.” Justice Sotomayor, joined by Justice Kagan, wrote a separate concurrence.
What Does the Integrity Staffing Decision Mean for Employers?
Of immediate concern, the Supreme Court’s decision provides a clear, final answer for employers on security screenings, which have become more common. The decision also wipes out the spate of class and collective action lawsuits filed by employees seeking backpay for time spent undergoing pre- or post- shift security checks that were filed in the wake of the Ninth Circuit’s decision, eliminating some tremendous potential liability for those employers. More broadly, even though this case focused only on security checks, the decision could further limit the scope of what constitutes “integral and indispensable” activities. Over time, a more limited view of an employee’s principal activities should prove valuable to employers looking for certainty about the compensability of a host of pre- and post-shift activities (save for donning and doffing, which remains somewhat of an enigma).