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Corporate Counsel Connect collection

January 2015 edition

After SCOTUS's Integrity ruling, how far can employers go?

Jeremy Byellin, JD

Jeremy ByellinLast month, the Supreme Court ruled in the landmark employment law case Integrity Staffing Solutions v. Busk. The case involved the question of whether employees of Integrity Staffing Solutions, who retrieved products from warehouse shelves and packaged them for delivery to customers, were entitled to compensation under the Fair Labor Standards Act (FLSA) for the approximately 25 minutes spent every day undergoing security screenings and waiting to undergo them.

These screenings, which are meant to reduce employee theft, were required by the employer as a condition of the warehouse workers' employment. The Court unanimously ruled that, regardless of this fact, the FLSA does not require Integrity to compensate its employees for this time.

The case & FLSA

While it may seem counterintuitive that the FLSA would allow employers to require employees to spend time on particular tasks with no obligation to compensate them, but it's actually in line with the law – the Portal-to-Portal Act of 1947, which amended the FLSA to clarify that certain activities are not compensable working time. Namely, the act exempts the following two categories of activities:

  1. traveling to and from the actual place of work; and
  2. "activities which are preliminary to or postliminary to [the principal activity or activities which such employee is employed to perform]."

The Court found that the security screenings were exempted as part of the latter category of activities, rather than being a part of the "principal activities" of employment.

"Principal activities"

Understanding how the Court came to the conclusion that it did requires an understanding of how the Court defines "principal activities:" as those which "embrac[e] all activities which are an 'integral and indispensable part of the principal activities.'"

The Court explicitly held that the screenings were not a principal activity because "Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers." Nor were the screenings integral and indispensable to the employee's principal activities, since employees are able to carry out their principal job functions safely and effectively without undergoing them.

This holding reversed that of the Ninth Circuit, which had held that because the screenings were related to the principal activities (in that any potential thefts attempting to be deterred by the screenings would have been of products on the warehouse shelves), the time spent in the screenings or waiting for them is compensable. In response, the Court reiterated its holding that it only matters whether the activity is "integral and indispensable" to the principal activities, not just related (even if the activity is mandated by the employer).

What isn't "principal" then?

This then begs the question: if activities must be "integral and indispensable" to merit compensation under the FLSA, how much can the employer require his or her employees to do without having to pay wages?

The Court gave some examples in its opinion of activities related to the screenings that would require compensation: Time spent by a butcher sharpening his knives, and by a battery plant worker to don and remove protective gear.

But let's look at an example used by those who argued on the side of the warehouse workers: could an employer require employees to clean his house or mow his lawn uncompensated? The Court doesn't address this hypothetical, but, as ridiculous as it sounds, it's completely plausible under this ruling.

Let's say the principal activity of employment were data processing in an office. If the employer notified every employee before he or she was hired that, as a condition of employment, he or she must consent to cleaning the employer's pool – or some other activity completely unrelated to the principal employment activity – without pay once every two weeks, would the FLSA allow it?

According to this ruling, yes.

Whether the Court agrees with this result remains to be seen, should such a farfetched scenario ever present itself. But this Integrity ruling makes it that much more likely that such a scenario would find its way to the Court.

About the author

Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.