Integrity Staffing v. Busk: Security Checks Not Compensable Under FLSA

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On December 9, 2014, the United States Supreme Court ruled in a 9-0 decision that hourly warehouse workers at two warehouses in Nevada are not entitled to compensation under the Fair Labor Standards Act (“FLSA”) for time spent waiting to undergo and going through security screens at the end of their shifts. Integrity Staffing Solutions Inc. v. Busk, 574 U.S. __, No. 13-433 (2014) (slip op. available here). The Court reversed the Ninth Circuit Court of Appeals’ decision which held that the half hour at the end of each workday that employees spent waiting to go through the antitheft security checks could be compensable under the FLSA because the screens were “necessary” to the employees’ primary work as warehouse employees and done solely for the benefit of Integrity Staffing, the employer. Busk v. Integrity Staffing Solutions Inc., 713 F.3d 525 (9th Cir. 2013).

Justice Clarence Thomas, writing for the Court, reasoned that the security screens were neither “integral” nor “indispensable” to the employees’ principal work activities of packing goods for shipment, and thus did not under the FLSA, as amended by the Portal-to-Portal Act. Slip op. at 5 (internal citations omitted). The Court held that an activity is not integral and indispensable to an employee’s principal activities “unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities.” Slip op. at 6. Applying that standard to the case before it, the Court held that the security screenings were not an “intrinsic element” of retrieving products from warehouse shelves or packaging them to be shipped, stating that Integrity Staffing “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.” Id. at 7. The Court also noted that its conclusion is consistent with the Department of Labor’s (“DOL”) regulations, and its 1951 Opinion Letter, which found non-compensable pre-shift security checks at a rocket-powder plant for employees carrying matches and other items that had direct bearing on the safety of the employees (the DOL had also argued as an amicus for Integrity Staffing).

In a concurring opinion joined by Justice Elena Kagan, Justice Sonia Sotomayor noted the DOL reached the same conclusion regarding similar security screenings shortly after Congress amended the FLSA by enacting the Portal-to-Portal Act in 1947 and stated that the Court owes deference to the DOL’s determination. Though the concurrence omitted the “intrinsic element” language, it defined an “indispensable activity” as “one where an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively” (emphasis added). Slip op., Sotomayor concurring op. at 1. The concurrence stated that the security searches were merely “part of the process by which the employees egressed their places of work, akin to checking in and out and waiting in line to do so—activities that Congress clearly deemed to be preliminary or postliminary [under the Portal-to-Portal Act].” Id. (internal citations omitted).

Because it is based entirely on the FLSA and the Portal-to-Portal Act, Busk should have little to no effect on lawsuits brought under the California Labor Code or related regulations or rules. Indeed, unlike the FLSA, California’s wage and hour laws expressly provide that all time during which an employee is “subject to the control of an employer” is compensable. California Industrial Welfare Commission Order 9.