Page 69 - MetalForming September 2015

You and The Law
By Douglas B.M. Ehlke
Post-Workshift Antitheft Security Screening is Not Compensable Time
The U.S. Supreme Court finds that employee time spent waiting to undergo an employer’s antitheft security screening—estimated to be as long as 25 min. after the completed workshift—does not constitute compensable time.
Integrity Staffing Solutions required its warehouse employ- ees, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to be screened before exiting the warehouse. The employees sued for a class action seeking 25 min. of pay per day under the Federal Fair Labor Standards (Wage and Hour) Act (FLSA), a 1938 law. This law does not define “work” or “work week,” other than to include “all time during which the employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” As a result, a Tennessee coal-mining case in 1944 and a pottery company case in 1946 upheld employer wage liability for required time spent trav- elling between mine portals and underground work, and then for time spent walking from time clocks to work benches.
Those early U.S. Supreme Court decisions sparked a flood of worker lawsuits seeking nearly $6 billion in back pay and damages for a multitude of preshift and postshift activities.
To protect employers, Congress passed the Portal-To-Por- tal Act stating an exemption from the FLSA compensable over- time pay requirement for exempted time involved in:
“1) Walking, riding or traveling to and from the actual place of performance of the principal activity or activities that such employee is employed to perform, and
“2) Activities that are preliminary to or postliminary to said principal activity or activities,
“...which occur either prior to the time on any particular workday at which such employee commences, or subse- quent to the time on any particular workday at which he ceas- es, such principal activity or activities.”
Precedent case law under the Portal-To-Portal Act have interpreted the term “principal activity” to cover all work activ- ities that are integral and indispensable parts of the workers’ principal activities. Those precedents found compensable:
• The time battery-plant employees spent showering and changing clothes because the chemicals in the plant were
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elec- tions. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law. Ehlke Law Offices
28840 11th Avenue South, Federal Way, WA 98003-3705 tel. 253/839-5555
dehlke@ehlkelawoffices.com
toxic. The employer admitted clothes-changing was indis- pensable to performing production work.
• The time meat-packing employees spent sharpening their knives because dull knives would “slow down production” on the assembly line and lead to “accidents” or more “waste.”
In contrast, the Supreme Court determined the time poultry-plant workers spent waiting to don protective gear as noncompensable because such waiting was only “two steps removed from the assembly line production activity.”
In the December 9, 2014, decision in the Integrity Staffing case, the court ruled that post-workshift antitheft screenings were noncompensable activities. The screenings were not relat- ed to the “principal activity or activities which the employee is required to perform.” The court analyzed as the litmus test:
“The screenings were not an intrinsic element of retriev- ing products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.” MF
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