WAITING TO WORK OR WAITING TO LEAVE: PAID TIME? SUPREME COURT DECIDES

The U.S. Supreme Court has ruled that employees who wait on a security line before leaving the worksite to go home is not compensable or paid time under the Fair Labor Standards Act (FLSA). Please refer to our blog post on 10.21.14 for how this case came about. Basically, contracted employees before leaving an Amazon warehouse are required to go through security screenings. They sought overtime compensation for the time spent. The unanimous decision was in favor of the employer.

When Congress enacted the FLSA, it purposefully left vague a number of provisions. As a result, a floodgate of litigation ensued as employees wanted to be paid for walking to and from job sites. More than $6 billion in payouts in 1940s dollars were paid, almost bankrupting several industries. As a result, congress passed and emergency law, the Portal to Portal Act that exempted travel to or from work. It also exempted from overtime pay “activities which are preliminary [before work begins] to or postliminary [after work ends] to said principal activities.”

The key in deciding whether a particular activity is exempt is determining whether it is “integral and indispensable” to the main work performed.

Thus, battery-plant workers’ showers after work have been held to be integral to their work duties because the chemicals were toxic and changing clothes and showering were indispensable to the principal work done. Similarly, meat packers sharpening their knives was compensable time, as dull knives are dangerous and wastes product. The Department of Labor (DOL) has issued regulations exempting checking in and out from work and waiting in line to do so. The situation presented in this case fell into that category, and was therefore found not to be compensable time.

Justice  Sotomayor, with whom Justice Kagan joined, wrote a concurring opinion which summarized the Court’s findings:

“The Court reaches two critical conclusions. First, the Court confirms that compensable ” ‘principal’ ” activities ” ‘includ[e] . . . those closely related activities which are indispensable to [a principal activity’s] performance,’ ” ante, at 6 (quoting 29 CFR §790.8(c)(2013)), and holds that the required security screenings here were not “integral and indispensable” to another principal activity the employees were employed to perform, ante, at 7. I agree. As both Department of Labor regulations and our precedent make clear, an activity is “indispensable” to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively. Thus, although a battery plant worker might, for example, perform his principal activities without donning proper protective gear, he could not do so safely, see Steiner v. Mitchell, 350 U. S. 247, 250-253 (1956); likewise, a butcher might be able to cut meat without having sharpened his knives, but he could not do so effectively, see Mitchell v. King Packing Co., 350 U. S. 260, 262-263 (1956); accord, 29 CFR §790.8(c). Here, by contrast, the security screenings were not “integral and indispensable” to the employees’ other principal activities in this sense. The screenings may, as the Ninth Circuit observed below, have been in some way related to the work that the employees performed in the warehouse, see 713 F. 3d 525, 531 (2013), but the employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired, see ante, at 7.

Second, the Court holds also that the screenings were not themselves ” ‘principal . . . activities’ ” the employees were ” ’employed to perform.’ ” Ibid. (quoting 29 U. S. C. §254(a)(1)). On this point, I understand the Court’s analysis to turn on its conclusion that undergoing security screenings was not itself work of consequence that the employees performed for their employer. See ante, at 7. Again, I agree. As the statute’s use of the words “preliminary” and “postliminary” suggests, §254(a)(2), and as our precedents make clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining the beginning and end of the workday. See IBP, Inc. v. Alvarez, 546 U. S. 21, 34-37 (2005). It distinguishes between activities that are essentially part of the ingress and egress process, on the one hand, and activities that constitute the actual “work of consequence performed for an employer,” on the other hand. 29 CFR §790.8(a); see also ibid. (clarifying that a principal activity need not predominate over other activities, and that an employee could be employed to perform multiple principal activities). The security screenings at issue here fall on the “preliminary . . . or postliminary” side of this line. 29 U. S. C. §254(a)(2). The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so–activities that Congress clearly deemed to be preliminary or postlimininary. See S. Rep. No. 48, 80th Cong., 1st Sess., 47 (1947); 29 CFR §790.7(g). Indeed, as the Court observes, the Department of Labor reached the very same conclusion regarding similar security screenings shortly after the Portal-to-Portal Act was adopted, see ante, at 7-8, and we owe deference to that determination, see Christensen v. Harris County, 529 U. S. 576, 587 (2000).”

There remain many issues still undefined in the workplace regarding whether a particular activity is exempt or not. The courts and DOL will continue to refine the parameters of exempt and non-exempt time as specific situations occur. 

Should you have wage and hour questions or other workplace issues, please contact the Gilbert Law Group at 631. 630.0100.