Integrity Staffing Solutions v. Busk: Supreme Court Holds That FLSA Does Not Require Overtime Pay for After-Work Security Screening

Published December 10th, 2014 -  - 12.10.1412


In a post last month we discussed the background of Integrity Staffing Solutions v. Busk, a case arising under the Fair Labor Standards Act in which the Supreme Court had recently heard oral argument.  The question in the case was whether an hourly employee is entitled to compensation under the FLSA for time spent participating in an employer-mandated anti-theft search at the end of the workday.  In its decision, handed down yesterday, a unanimous Court made clear that the answer is no.

The case turned on the application of the Portal-to-Portal Act, which carves out exceptions to the FLSA’s general requirement of overtime compensation for when employees work more than 40 hours per week.  Under the Portal-to-Portal Act, employees need not be compensated for activities that are “preliminary” or “postliminary” to the “principal activities” they are hired to perform.  However, the Supreme Court has interpreted the Act to require compensation for activities that are “integral and indispensable” to principal activities.

The plaintiffs in Busk were warehouse workers who were required to pass through a security screening at the end of each shift.  They were not compensated for time spent going through this process, which could take as long as 25 minutes.  After the district court dismissed plaintiffs putative class-action claim, a unanimous panel of the Ninth Circuit reversed, holding that when activities are “necessary to employees’ primary work . . . and done for [the employer]’s benefit,” those activities are compensable as “integral and indispensable” to the employees’ principal activities.

The Supreme Court reversed.  Writing for a unanimous Court, Justice Thomas emphasized the “ordinary sense” of the words “integral and indispensable,” explaining that an activity is integral and indispensable to principal activities only “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  Because “Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work,” the screenings did not fall within the FLSA’s coverage.

The Court faulted the Ninth Circuit for “focusing on whether an employer required a particular activity.”  Any test that focused merely on whether an employer required a given activity would sweep far too broadly, requiring compensation for the very activities that the Portal-to-Portal Act was specifically intended to exempt.  The same would be true for any “test that turns on whether the activity is for the benefit of the employer.”

Justice Sotomayor, joined by Justice Kagan, concurred, writing separately to elaborate on her understanding of the Court’s standard.  She first explained that in her view, “an activity is ‘indispensable’ to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.”  Second, Justice Sotomayor clarified why the screenings were not themselves “principal activities.” She emphasized that the Portal-to-Portal Act “distinguishes between activities that are essentially part of the ingress and egress process, on the one hand, and activities that constitute the actual ‘work of consequence performed for an employer,’ on the other hand”  Because the screenings at issue “were part of the process by which the employees egressed their place of work,” they clearly fell within the Portal-to-Portal Act’s exception for “postliminary” activities.

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