Supreme Court weighs worker pay for time spent in ‘security checks’

What counts as “work” was a question before the Supreme Court today, with implications for thousands of low- and middle-wage employees across the U.S. In the case Integrity Staffing Solutions, Inc. v. Busk, which will be decided this term, the court considers whether an order-fulfillment subcontractor for Amazon.com must pay warehouse workers for time spent waiting to go through security after their shifts.

The lawsuit was initially filed by Jesse Busk and Laurie Castro, employees of Integrity Staffing in Nevada. “At the end of each day, after they had clocked out,” their petition states, employees had to wait in line for an “anti-theft ‘security clearance,’ ” during which they “emptied their pockets, removed their wallets, keys and belts, and passed through metal detectors.” They sued to be paid for the extra 25 or so minutes this added to each work day.

The trial court ruled that this time did not qualify as work under the New Deal-era Fair Labor Standards Act, whose “portal to portal” rule exempts activities that are “preliminary” or “postliminary” to one’s job — like driving to work. But on appeal, the Ninth Circuit court reversed the decision, holding that the mandatory security screenings were “integral and indispensable to an employee’s principal activities” and should be factored in when tallying up employee hours and overtime pay.

In oral argument this morning [PDF], Integrity Staffing insisted that going through security is like waiting to punch a time clock and therefore falls outside the limits of paid work — an assertion scrutinized by the liberal side of the bench. Conservative Justices Alito, Roberts and Scalia pressed the attorney for Busk and Castro to explain why time spent in security screenings is so related to warehouse work that it deserves compensation.

Retail and employer groups, as well as the federal government, had submitted friend-of-the-court briefs supporting the Amazon subcontractor’s petition. (Neither the National Retail Federation nor attorneys for the Retail Litigation Center would speak about the case.) Employee advocates and the AFL-CIO labor federation filed papers on behalf of the warehouse workers.

As to why the Department of Labor backs the employer in this case, “The U.S. uses security checks as well, and so, understandably, [it] would prefer not to pay employees for the time they spend participating [in clearance],” said attorney Paul W. Mollica, who submitted an amicus brief on behalf of the National Employment Lawyers Association. Economist and former Secretary of Labor Robert Reich condemned the Obama administration’s stance, writing on Facebook, “I thought the Administration wanted to improve the wages of average workers rather than reduce them. Its position in this case runs exactly counter to this avowed goal … just weeks before the midterm election.”

While the wages in question may seem minor, for the thousands of workers in the Amazon.com supply chain earning between $9 and $12 per hour, it can make a noticeable difference. “If it’s [even] 15 minutes, that’s $3. That’s a significant amount of money,” said Sheheryar Kaaosji of the Warehouse Workers Resource Center in California. And if paid at an overtime rate for these 15 minutes — warehouse employees are entitled to a 50 percent wage premium for hours worked in excess of 40 per week — each individual could be owed around $1,200 per year, translating into millions or even billions of dollars for the corporations and government agencies that employ them.

Kaaosji points out that, while the validity of security checks is not being litigated, the case is implicitly “about how the workers are treated like criminals.” “There’s workers at some other warehouses who have to empty their pockets before or after they go to the bathroom,” he said. “They are searched several times a day.”

Increasingly, those subject to these practices are employed not by high-profile firms like Amazon, Walmart or Apple but by smaller, unknown subcontractors. “What you’re talking about is really a wholesale change in the way American businesses have run in the last couple generations,” said Mollica, the employment lawyer. “Amazon, rather than retrieving the books they market, hires firms like Integrity Staffing to handle it and then leaves them with the labor and wage and other issues. In that sense, it’s very indicative of the age we’re living in.”