The FLSA: Is Pre- and Post-shift Work Compensable?

Generally, workers are entitled under the federal Fair Labor Standards Act to be paid for “work time”. Workers do not receive pay or overtime for non-work activities before or after their shift. On December 9, 2014, the Supreme Court issued a new employer-friendly decision regarding whether certain pre- and post-shift work is compensable time.

In Integrity Staffing Solutions, Inc. v. Busk,  the employer provided warehouse staffing to throughout the United States. The employees were paid hourly and worked in warehouses retrieving products from shelves and packaging the products for delivery to Amazon customers. Integrity Staffing Solutions required all employees to undergo security screening before leaving the warehouse at the end of each day to prevent theft. The employees alleged that the screenings could take as long as 25 minutes each day, and filed a putative class action seeking overtime pay for all similarly situated employees for the time spent in security screenings.

The Supreme Court was faced with the question of whether the security screenings were an “integral and indispensable part of the principal activities” of the employees. If so, the employees would be entitled to overtime pay.

The Court noted that Integrity Staffing did not employ the workers to undergo security screenings, nor were such screenings an integral or intrinsic part of retrieving products from warehouse shelves for shipping. Indeed, the screenings could have been eliminated entirely without impairing the employees’ ability to perform their job duties. Accordingly, the Supreme Court unanimously held that Integrity Staffing could require pre- and post- shift security screenings without paying employees overtime for the time required to undergo such screenings.

Further litigation will likely focus on clarifying which elements of productive work are actually indispensable or an intrinsic element of the job. It remains to be seen whether this method of analyzing the problem might lead to different rulings in prior cases that dealt with the difference between the time it takes a butcher to sharpen her knives or the time it takes a battery plant worker to don protective gear (two tasks previously found to be compensable). Compare this with the time a poultry-plant employee spends donning protective gear (a task deemed non-compensable, being two steps removed from the productive work).

Employers should consider reexamining what pre- and post- work activities are paid work time and whether this time might push the employee over forty hours in a single work week. Of course, employers must also be wary that a state wage and hour statute might yield a different result on compensability of time clearing a security check.

By: Josh Silk, Esq. and Don Benson, Esq.

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