This is a special supplementary post from The EmpLAWyerologist. It does not replace the regular weekly post, which will go live in two days. What’s so special about this post? Remember a few weeks ago, when were looking at cases pending before the US Supreme Court? Well, it has now handed down a decision on Integrity Staffing Solutions Inc v Busk, et al also known as the security check case, and it gave a thumbs-down to employees looking to be paid for time they spend waiting for and actually undergoing security checks. (Click here for a review of the facts, history and issues). We’ll look at why, and also how this case squares with the “donning and doffing” cases after the jump…
I already blogged about the case a few weeks ago, so I will not repeat, facts, procedural history or the parties’ arguments now. At the outset I do note something that, while not unheard of, is somewhat unusual: The ruling was unanimous. (You can find the actual opinion here.) Often the US Supreme Court will hand down a majority ruling, meaning there is still a split–often along political ideological lines. No so here. All nine justices agreed that time spent waiting for and undergoing security checks at the end of the day is not considered “work”, and therefore is not compensable. Many employers are likely to be breathing a collective sigh of relief.
Why shouldn’t employees be paid for time spent in security checks? Under the Portal-to-Portal Act of 1947 (click here for review), tasks must be integral to and indispensable to performing the work that the employees were actually hired to do or they are deemed “preliminary” or “postliminary”, i.e. not work and not compensable. Wait a minute. The Supreme Court has ruled in other cases that time spent changing into or out of protective gear and sometimes even uniforms is integral to the actual work and therefore compensable. Those are known as “donning and doffing” cases. Why is time spent donning and doffing equipment or certain clothes sometimes “indispensable”, but waiting for and going through security checks is not? According to the US Supreme Court, if employees need to don or doff certain clothing or gear to perform their essential job functions adequately or safely, time spent doing so is integral to the principal job functions and is compensable. When doing so is merely convenient for the employee but not directly related to actual job activities, it is not”work” and would not compensable.
The fact that the employer required and benefited from the security checks, according to the court was not relevant. Here is really the crux of the Court’s reasoning: If the absence of the activity in question would impair the employees’ ability to perform the principal job functions efficiently and/or safely, then the activity is indispensable to the job, and the employees must then be paid for time they spend on those activities. Since the employees could have retrieved objects and fill orders without undergoing the security checks, waiting for and undergoing security checks was not integral to the job, ergo they were not “working”, ergo they were not entitled to be paid.
Does that sound convoluted? Does that sound like hair-splitting? Supreme Court decisions often appear to be just that. Could it have found sufficient reasoning to support the opposite conclusion? Maybe yes, maybe no. The Court, quoting from legislative findings included in the Portal-to-Portal Act, appears to have been concerned that such a decision would have resulted in “wholly unexpected liabilities, immense in amount, and retroactive in operation upon employers”. Those of you who may have been impacted by a contrary ruling just caught a break — for now.
Stay tuned for our regular post on Thursday morning December 12, where we continue probing into discrimination based on sexual orientation and gender identity.
If you or your company would like to learn more about co-employment and minimizing joint liability, click here to download my webinar on Joint Employment, which aired at 1 p.m EST Tuesday November 25, 2014.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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