The Supreme Court Hears Oral Argument in Busk: Could Employers Have to Pay for Employee Time Spent Passing Through Security?

On October 8, 2014, the U.S. Supreme Court heard oral argument in Integrity Staffing Solutions, Inc. v. Busk. In Busk, plaintiffs allege that, under the FLSA, their employer should have compensated them and other warehouse employees for time spent passing through the employer’s security clearance at the end of their shifts, including their time spent waiting in line to be searched. Busk is an important case to watch because the Court may provide employers with wide-ranging guidance on what pre-work or post-work tasks are compensable.

Busk originally filed in the United States District Court for the District of Nevada. The trial court granted the employer’s motion to dismiss, holding that security screenings are quintessential “preliminary” or “postliminary” activities that are non-compensable under the FLSA because they are not related to the principal activity of the employees’ work. The Ninth Circuit, however, disagreed holding that no bright line rule existed regarding compensability of time spent in security screenings. The Ninth Circuit further held that the plaintiffs’ claim should not have been dismissed because the employer’s concerns about employee theft stemmed from the nature of the employees’ work and therefore it could be considered “integral and” “indispensable” to the employees’ principal activities and thus, compensable. The employer appealed the Ninth Circuit’s ruling and the Supreme Court granted certiorari.

Oral argument before the Supreme Court focused on the amount of time employees spent waiting in line for the security clearance—allegedly up to 25 minutes—as well as the nature of the activity e.g., whether going through security clearance was related to the principal activity of the employees’ work.  Plaintiffs’ counsel focused on the alleged considerable wait time to be searched, arguing that this fact made it similar to other activities the Court had previously held was  compensable, such as time spent “engaged to wait” for assignments or time spent taking an employer-mandated drug test. Conversely, the employer’s counsel focused on the fact that the activity at issue was unrelated to the principal activity of the warehouse employees (e.g., fulfilling orders for and thus more like activities the Court had previously held was non-compensable, such as clocking in and clocking out of the employer’s time clock or traveling to and from work.

From their questions and comments, it seems that Justices Kagan, Breyer, Sotomayor and Ginsberg favored the Plaintiffs’ arguments while Justices Scalia, Alito and Roberts sided with the employer. For example, Justice Kagan raised hypotheticals comparing the time spent clearing security to time that employers customarily pay for, such as time spent by cashiers closing out cash registers. In contrast, Justice Scalia trumpeted the employer’s argument that time spent clearing security was more akin to punching in and out, which is not compensable. This is a case that employers should watch closely because it will likely provide considerable guidance regarding whether security checks and other pre and post-shift activities are compensable.