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ISS v. Busk – What Is “Work” Under the FLSA?

The Supreme Court recently handed down a consequential decision restricting the ability of workers to pursue actions against employers for unpaid overtime under the Fair Labor Standards Act (“FLSA”). The case, Integrity Staffing Solutions, Inc. v. Busk, involved employees employed by Integrity Staffing Solutions (“ISS”) working at warehouses. Employees alleged that ISS forced all employees to go through a theft-prevention screening at the end of their shifts to ensure that the employees were not stealing goods, and that employees had to wait, on average, twenty-five minutes each day to go through this process. The employees brought suit seeking payment for the time they were required to spend waiting in line to go through ISS’s mandatory post-shift screening.

The question before the Court was whether the time spent waiting in line for mandatory screening after the end of their shifts was “work” for which the employees were entitled pay. The relevant law concerning many questions of pre-shift and post-shift work is the “Portal to Portal Act,” an amendment to the FLSA. The Portal to Portal Act severely limited the definition of what activities are considered “work” – and therefore warrant compensation – under the FLSA. Specifically, the Portal to Portal Act changed the definition of “work” under the FLSA to include only those tasks which are “principal activities” of the job. The Court had previously defined a “principal activity” to mean an “integral and indispensible” element of employment.

The Court held that time spent in line for post-shift screenings was not a principal activity, and therefore, the defendant was not required to pay plaintiffs for that time. Its decision overruled the holding by the Ninth Circuit Court, which stated that because the screening was mandatory and for the exclusive benefit of the employer, it was compensable under the FLSA. The Supreme Court, in a unanimous decision, disagreed. The Court focused on the “integral and indispensible,” and found that, as a screening check was not necessary to perform warehouse work, it was not integral to the employee’s job, and therefore not compensable. The Court found the facts that the screening was mandatory and for the exclusive benefit of the employer to be insignificant.

An instructive comparison the Court used was the difference between changing clothing in a battery manufacturing plant and changing clothing in a poultry processing plant. In a battery manufacturing plant, employees are required to wear protective garments to prevent injury from the dangerous substances involved in the manufacturing process, and must take time to change in and out of them. It is not possible to safely manufacture batteries without the protective garments, therefore the time spent putting on the protective garments is compensable. In a chicken slaughterhouse, however, protective garments are used to keep clothes clean rather than for safety; it is possible to work safely and efficiently without them. Thus, the time spent putting on protective garments in a poultry plant is not compensable.

The effects of this decision remain to be seen; however, it does confirm the courts’ increasingly narrow view of what employers are required to compensate employees for doing.

If you believe that your employer is not properly paying you for all hours worked, contact The Harman Firm, LLP.

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