Do You Have To Pay Employees To Go Through Security Checks?

Written by Robert G. Brody and Susan M. Westphal on December 30, 2014

Last March, we wrote about the split in the circuit courts concerning whether or not employees should be paid for time spent going through a daily end-of-shift security clearance.  Integrity Staffing Solutions, Inc. v. Jesse Busk and Laurie Castro, the case which brought this issue to the United States Supreme Court, was decided on December 9, 2014, and employers should rejoice:  post job security screenings are not compensable under the Fair Labor Standards Act (“FLSA”).

The facts in Integrity pertain to security checks by Amazon.com warehouse workers, who retrieved inventory and packaged it for shipment.  At the end of their shifts they are required to wait in line and to go through a security screening to ensure there was no theft. An employee of Integrity (acting on his own behalf and others similarly situated) complained, claiming the time spent in line for the security screening and the screening itself should be compensable.  While the Court of Appeals for the Ninth Circuit agreed, the Supreme Court reversed.

In rendering its ruling, the Supreme Court discussed the purpose of the Portal-to-Portal Act, which was to limit the interpretation of compensable work time under the FLSA, and focused on one of the employer exemptions: preliminary and postliminary activities.  The Court then focused on what activities are “integral” and “indispensable” to the principal activities of the job.  In so doing, the Supreme Court discussed whether the activity at issue was tied to the productive work the employee was hired to do, not whether the employer required it.  Here, the Court held the security screenings were not compensable since the employees could have performed their job without the screenings.  The Solicitor General (adopting the Department of Labor’s position) agreed.  The Court further relied on a 1951 Opinion Letter where a pre-shift security check relevant to the safety of workers was determined to be non-compensable.  While the employees tried to also argue the waiting time before the screening should be compensable, the Supreme Court rejected that angle because waiting for the activity does not change the type of activity it is.  Instead, the Court said it was an issue to be addressed with the employer at the bargaining table.

While there will still be plenty of litigation concerning what is “integral” and “indispensable,” the Supreme Court has provided a clearer distinction of how to apply it  and has made litigants re-focus on the purpose of the Porta- to-Portal Act.  In the interim, if you are unsure about whether to pay your employees for their “preliminary” and “postliminary” requirements, you should consult counsel.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Legal Updates, Wage and Hour

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Susan Westphal has represented employers in employment disputes covering wage and hour claims, discrimination, sexual harassment, retaliation, and employment at will, both in court and before administrative agencies. Learn More »