On Wednesday, October 8, 2014, I attended the oral arguments
at the U.S. Supreme Court in the case of Integrity
Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees
should be paid for time spent waiting and completing an elaborate security
screening used for inventory control (or anti-theft) purposes after clocking
out at the end of a shift. Workers at Amazon.com warehouses, employed by
Integrity Staffing Solutions, are required to undergo a mandatory search of their
body and belongings before being permitted to exit the facility. The search, which
is similar to that conducted at airports, required employees to empty their
pockets, have their bags searched, and walk through a metal detector. Long
lines often formed at the screening stations, requiring workers to wait up to
25 minutes before they could leave the premises. The workers are represented by
Mark R. Thierman, Thierman Law Firm, P.C., Reno, Nevada, and Professor Eric
Schnapper, University of Washington School of Law, Seattle, Washington.
Counsel for Integrity Staffing Solutions, Paul D. Clement, Bancroft
PLLC, characterized the wait time as simply a “logical part of the egress
process” that did not merit compensation. He argued that the Portal-to-Portal
Act of 1947, which amended the Fair Labor Standards Act, requires the screening
to be an “integral and indispensable” component of the workers’ “principal
activities” in order to mandate compensation under the law. Clement repeatedly
asserted that the screenings were in no way “integral and indispensable” to the
work the employees performed. He compared the screening to checking out at the
end of the workday—an activity for which employees are not compensated.
Curtis E. Gannon, Assistant to the Solicitor General,
arguing for the government, agreed. He urged the Court to find that Integrity
Staffing Solutions’ screenings failed to rise to the level of compensable
activity. When pressed by Justice Ruth Bader Ginsburg for an example of how
invasive a security screening had to be before it could be compensable, Gannon
stumbled, eventually capitulated and stated that he could not provide a
specific example of when a screening would cross the line into compensable
territory.
Thierman reframed the discussion, distilling the Court’s inquiry
to two questions: Is it work? If it is work, is it a “principal activity”
requiring compensation? Although Justice Samuel Alito chastised Thierman for
failing to argue whether the screenings were “integral and indispensable” to
the employees’ work of packing and shipping merchandise, Thierman persevered, picking
up steam as he continued. He focused on the practical realities of the security
screenings, arguing that they went far beyond a basic check-out process. He explained
that had the employees been required to remain at their workstations for
screeners to inspect them, the time would certainly be compensable. The
warehouse workers, he explained, are “engaged to wait.” Because they are required to wait for up to 25 minutes
each workday to be screened, he argued, they must be compensated for their
time.
The Justices, based on their questions and comments, appeared
to be split along predictable lines with Justice Anthony Kennedy’s vote hanging
in the balance. The conservative Justices seemed concerned with the
abstractions of the law, while the liberal Justices aimed to reconcile the law
with the realities of the retail workplace in the 21st Century. Justice Elena Kagan
focused her questioning on the anti-theft nature of the screenings,
categorizing the procedure as inventory control. Justice Ginsburg asked about what
appeared to be the intentional shortage of screening staff that, as she noted,
shifted the cost of conducting the screenings onto the employees who were
forced to wait. Chief Justice John Roberts and Justice Antonin Scalia both
insisted that a “principal activity” could not include going through a security
screening.
Justice Kagan asked one of the more interesting questions,
positing a hypothetical based on real life. She said that there was a judge years
ago in New York who required his law clerks to arrive early every workday to
cut up his grapefruit and make his breakfast. She wondered whether the
government thought that was compensable time. Gannon conceded that it was.
Although this case will address the specific issue of
whether warehouse employees must be compensated for anti-theft inspection of
their person and belongings and the waiting time involved, the impact of the
Court’s decision will likely be far broader. As Thierman stated, this is about
Integrity Staffing Solutions’ attempt to push the line of compensation to
encompass less and less. Whether the Court’s ruling will permit employee rights
and safeguards to be eroded remains to be seen.
Kasey Burton is a
third-year law student at the University of Washington School of Law, Seattle,
Washington. She is externing at the National Employment Lawyers Association in
Oakland, CA, which filed an amicus
brief in this case. Kasey was thrilled to have the opportunity to attend the
U.S. Supreme Court argument.