What is Work?: Supreme Court Ponders Question This Term

Courtesy Dallas Morning News BizBeat Blog: http://bizbeatblog.dallasnews.com/2013/01/

Amazon Fulfillment Warehouse. Courtesy Dallas Morning News BizBeat Blog.

Last week the Supreme Court heard a case involving an essential question for the EJC and the workers it serves: what activities should employees be paid for? In other words, what is work?

The case, Integrity Staffing Solutions, Inc. v Busk, was brought by a class of thousands of warehouse employees who alleged that they should be paid for bag checks they must undergo after leaving work each day. The warehouses where these employees work stock hundreds of thousands of items, and the concern for the companies operating these warehouses is that employees will steal merchandise in their bags.  The companies therefore require that employees line up and undergo bag checks before leaving work. In a warehouse with thousands of employees working at one time, these lineups and bag checks can take 30 minutes or more each day. For an employee making about $12 per hour, this time waiting in line, if compensated, could amount to over $1,500 in wages each year. When these thousands of employees join together in a lawsuit, and their unpaid time stretches back a couple of years, the wages could total tens of millions of dollars.

Whether these employees must be paid for this time, of course, depends on whether this time constitutes compensable “work” under the law. The trick is that “work” is not defined under the federal minimum wage and overtime law, the Fair Labor Standards Act of 1938, or FLSA. Only a later amendment to the FLSA, the Portal-to-Portal Act of 1947, somewhat defined it by narrowing what was considered compensable work. It did so by excluding activities that were “preliminary and postliminary” to the employee’s “principal activities.” Later, the Supreme Court said that an employer must pay employees for any activity “integral and indispensable” to those “principal activities.” What all of these big words have meant in practice is that courts have employed a variety of sometimes-conflicting approaches to determining whether wages should be paid for a work activity.

In the bag check case before the Supreme Court, the attorney for the employees said that the bag check fit the Supreme Court’s test for compensable work because it was an “indispensable” part of the warehouse employees’ jobs – in many cases, employees could not physically get out of the building if they did not wait in line and undergo the bag check. He also argued that because the benefit of the bag check goes exclusively to the employer – for the employee, it is wasted, unpaid time – the employer should pay for the time. This approach, a “benefit to the employer” test, was used by the Ninth Circuit to justify allowing the bag check case to continue. In his brief to the Supreme Court, the employees’ lawyer warned that if this “benefit to the employer” test was not used, an employer could ask its employee to mow an office’s lawn after work without paying him.

On the other side, the lawyer for the employer argued for the application of a different legal test. He said that under current law, once an employee punches out, the time spent walking from the punch clock to the door out of the building was not compensable. The waiting line and bag check are no different, the employer’s lawyer said. Interestingly, the U.S. Department of Justice and Department of Labor supported the employer and its argument in this case. This is unusual because the U.S. government, particularly under President Obama, has generally favored employees in employment cases before the Supreme Court.

It is impossible to say how the Court will rule when it issues its decision, likely in the spring of 2015. As the answer to the question in this case could have a widespread impact on the many workers who engage in pre-shift and post-shift work, the EJC will be keeping a close eye on this case.

Thanks to the following sources for the background on this post: