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Argument preview: Theft and workers’ wage rights

At 10 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on an overtime pay case involving the after-hours screening of workers as part of a company policy to detect workplace thievery.  Arguing for the employer in the case will be Paul D. Clement of the Washington, D.C., law firm of Bancroft PLLC, with twenty minutes of time.  Supporting that side, with ten minutes of time, will be Curtis E. Gannon, an assistant to the U.S. Solicitor General, representing the federal government as an amicus.  Arguing for the workers with thirty minutes of time will be Mark R. Thierman of the Thierman Law Firm in Reno, Nevada.


Workers are entitled, under federal law, to be paid for overtime work — that is, beyond forty hours a week.  But, since 1947, the law has specified that workers should not receive extra pay for what they may do on the worksite before or after carrying out primary duties.  And the Supreme Court has interpreted that change to mean that added pay is not necessary for workplace activity that is not “an integral and indispensable part of the principal activities” of that worker’s shift on the job.

For years, the Supreme Court has struggled to define just when or how that limitation applies.  As recently as last January, it confronted that issue again.  It barred overtime pay for the extra time in the workplace that a worker takes to put on and take off protective gear needed on the job.  It will explore the issue further this Term in Integrity Staffing Solutions v. Busk.

The company in this case is a warehousing firm that provides storage space and order-filling services for companies that sell their goods online, such as the high-volume retailer  Also involved are two workers at the company’s Nevada sites in Las Vegas and Fernley — Jesse Busk and Laurie Castro.

Although the company, in taking the case to the Supreme Court, has sought to broaden it into a test of the right of employers to carry out “security screenings” in an era of terrorism and increased sabotage, this particular case had its origins in a company policy of searching workers before they left the plant, to prevent them from stealing the company’s or the clients’ property.

The screening was done as the workers left the two Nevada workplaces at the end of their shifts.  Besides suing Integrity, the workers have also filed lawsuits directly against Amazon, aiming at its facilities nationwide, in a class-action effort that may involve as many as 100,000 workers.

Busk and Castro filed their basic lawsuit against Integrity in 2010, contending that the end-of-shift screening was part of their workday, and that it sometimes kept them at the plant for at least an additional half-hour, part of which was spent simply waiting their turn to be screened.  They then had to remove their wallets, keys, and belts and pass through metal detectors.  Since this was part of a company policy of trying to minimize warehouse thefts, they argued that it was a necessary part of their workday, thus entitling them to overtime and back pay.

A federal judge rejected their claim, but the U.S. Court of Appeals for the Ninth Circuit reversed, holding that both federal overtime-pay law as well as Nevada labor laws gave the workers a right to be paid for that added time, because the screening was required by the company and was done for its benefit.

The company then took the case to the Supreme Court, raising the single issue of whether the workers were entitled, under federal law, to the added time they spent undergoing the security screening.  The workers passed up a chance to answer the appeal, but the Court then asked for a response.  The Court granted review on March 3.

Briefs on the merits

Integrity Staffing Solutions’ brief on the merits focused on what it argues is a gap between what the workers normally do in its warehouses and what they do when they go through a screening at the end of their shifts.  Because the two are completely unrelated, the employer contended, the screening simply cannot be considered any part of their workday.

The Ninth Circuit, the filing said, based its finding of a right to overtime pay on two notions:  the screening was required by the employer, and it was for the employer’s benefit.  Those are not valid tests under federal law, the cmployer contended, because that law is keyed to workplace activities that are part of an employee’s normal day.

In its warehouses, according to Integrity, workers like Busk and Castro can fulfill their jobs just by walking through the facility with collection carts, retrieving products from the shelves and packing them up for shipment to customers.  The screenings take place elsewhere, when the workday is over, and did not affect their work activity in any way, it added.

A worker could have skipped out a side door to evade the screening, and — although he would have violated company policy by doing so — he would not have failed to fulfill any part of his normal duties on the warehouse floor.

“Congress,” the brief argued, “drew a clear line between compensable principal duties and non-compensable preliminary and postliminary activities.”

The company used some of the same arguments to counter the workers’ contention that, because they had to wait in line to get screened, they should be paid for that time.  Just as walking from the parking lot into and out of the warehouse does not justify overtime pay for that time, neither does staying after work to be screened.

What the Ninth Circuit has done in this case, the filing said, is to try to revive an approach the Supreme Court took before Congress cut it off with the Portal to Portal Act in 1947.

The merits brief for the two workers and the class they represent in the case argued that prior Supreme Court rulings divide the analysis between activities that an employer requires its workers to perform, and activities in which, as a practical matter, workers must engage to be able to do the jobs assigned to them.  The requirement that tasks be integral and indispensable to a worker’s normal job chores is tied to the second type of activity, not the first.

Thus, the workers contended, the demand by an employer that a worker engage in an activity — such as the no-choice security screening procedure used in this case — triggers a legal duty to provide pay for the time spent doing so.

The employees’ brief seeks to reconcile its argument with the claim that a requirement by the employer that a worker do something before or after his normal shift is, in fact, a part of their work assignment and therefore should be compensated time.

If Integrity’s approach is allowed, that filing argued, the company could insist that workers mow the lawn in front of the warehouse or wash the boss’s car, without getting paid to do it, and that would still not violate federal law.

Unlike the time spent checking in and out before and after a shift, the workers’ brief said, undergoing a search on command from the management does not identify who is working that day and does not create a record of who did work and thus is entitled to pay for that day.  “The employer does not even care about the identity of the worker searched,” it added, “unless there is a problem.”

Among the few amici joining in the case, the most important for Integrity is the support it drew from the federal government, in a brief filed by lawyers for the Justice and Labor Departments.  That document stressed, as Integrity has, that the key to overtime pay obligations for after-work activities is whether they have a close and more direct relationship with what the worker ordinarily does while on the job.

Offering the Court some advice on how to interpret the federal law at issue, the government filing suggested some “reasonably clear benchmarks” that are now clearly established, but those benchmarks, when spelled out, essentially are variations of the theme that the tasks which must be compensated are integral and indispensable to the primary job requirements.

Security screenings, on their own merits, the government brief said, are similar to a requirement that a worker check out after finishing a day’s shift.

Beyond the government brief, Integrity has attracted the support of a variety of business and governmental organizations or trade groups.  The workers have the support of the AFL-CIO union leadership organization, and lawyers specializing in employment law and workers’ rights.



Recommended Citation: Lyle Denniston, Argument preview: Theft and workers’ wage rights, SCOTUSblog (Oct. 7, 2014, 12:04 AM),