Whether concerned about safety or theft, some employers are requiring employees to undergo mandatory security screenings both before and after work. Besides these screenings, there are other situations where employees may be required by their employers to do something outside of their normal work schedule, such as check work e-mails, fill out time sheets or answer client calls. Employers are often unsure as to whether or not they have to compensate employees for these out-of-schedule activities. The United States Supreme Court (“USSC” or the “Court”) recently addressed mandatory security screenings and provided insight into the types of activities that must be compensated.
The Facts of the Case
In Integrity Staffing Solutions v. Busk (“Integrity”), two employees of a warehousing company (contracted by Amazon.com) brought suit against Integrity after it implemented security screenings in response to suspected employee theft. The warehouse employees were required to pass through security checkpoints after their shifts and before leaving for lunch. Employees had to remove anything that was metal and other personal belongings before they passed through a metal detector. The employees alleged that the process took approximately 25 minutes. The employees claimed this time should have been compensated and counted towards their overtime hours under the Fair Labor Standards Act (“FLSA”).
The Fair Labor Standards Act
Under the FLSA, employees must be paid at least minimum wage, and time and a half for all time worked in excess of 40 hours in any week. (This generally does not apply to employees that are “exempt” from the FLSA. To see more on the difference between non-exempt and exempt employees, please see our previous article on the topic.) Employers are required to pay employees for all hours worked. The definition of “hours worked” not only incudes time spent on duty, but also includes time during which an employee is “permitted” to work, whether or not he/she is actually required to work. In Integrity, the USSC reviewed whether or not the time spent going through security screenings fell into the latter category.
The Decision
The USSC unanimously held that post-shift time spent undergoing mandatory security screenings was not compensable under the FLSA. The Court explained that the security screenings were not an “integral and indispensable part of the principal activities” that the employees were hired to perform, regardless of the fact that the employer required the employees to be screened. Therefore the Court established a rule that if an activity is not integral or indispensable to the employee’s job, the time spent doing it does not count towards the employee’s “hours worked,” relieving the employer from the obligation to pay for such time.
The Court contrasted the security screenings with “donning and doffing” – the term for time spent changing into or out of protective gear, and even work uniforms. The Court noted that donning and doffing is integral because it relates directly to the employees’ ability to safely and/or adequately perform their jobs. In Integrity, the employees’ ability to retrieve products and fill orders did not depend upon waiting for and undergoing security checks, and was therefore dispensable. This distinction is essential to understanding whether time spent performing an activity should be compensated under the FLSA.
The Lesson Learned
The Court’s decision signals to employers to reevaluate whether they should be paying employees for pre/post work activities that are required and/or permitted. Employers and their counsel need to determine whether such activities are “indispensable and integral” to the performance of their employees’ respective jobs. This issue is important for all employers, especially since wage and hour issues continue to be the most contentious and litigated issues arising out of the workplace.