Labor & Employment Law Daily Are post-shift security screenings non-compensable under Pennsylvania law?
Thursday, November 7, 2019

Are post-shift security screenings non-compensable under Pennsylvania law?

By Ronald Miller, J.D.

In multidistrict litigation involving wage-and-hour statutes from various states, this appeal raised the question whether the Supreme Court’s holding in Busk I that post-shift security screening is not compensable resolves a similar claim under the Pennsylvania Minimum Wage Act.

The Sixth Circuit certified to the Pennsylvania Supreme Court two questions regarding compensation for waiting time for post-shift security screenings and the validity of an employer’s de minimis defense for such time. Specifically, the appeals court first asked whether time spent on an employer’s premises waiting to undergo and undergoing mandatory security screening was compensable as “hours worked” within the meaning of the Pennsylvania Minimum Wage Act (PMWA). Second, the appeals court asked whether the de minimis doctrine applied to bar claims brought under the PMWA (In re, Inc., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, November 4, 2019, Griffin, R.).

The employees work at an Amazon fulfillment center. Certain employees worked directly for Amazon, while others worked for a staffing company, Integrity Staffing Solutions. Amazon and Integrity separately employed hundreds of hourly employees at the facility. Hourly employees clock in and out at the beginning and end of their shifts, respectively. After clocking out at the end of their shifts, employees are required to undergo antitheft security screening, which included metal detectors, searches of handbags and other personal items, and “a secondary screening process if the metal detector’s alarm sound[ed].”

While the parties disagree as to the amount of time this screening took on average, no party disputes that the employers did not compensate their employees for the time it took to wait in line for and undergo these security screenings.

In Integrity Staffing Solutions, Inc v. Busk (Busk I), the U.S. Supreme Court held that employees’ time spent waiting to undergo and undergoing post-shift security screening is not compensable under the FLSA. Here, the district court noted that “Pennsylvania and federal courts have used the FLSA law for interpretative guidance” where its provisions mirrored those of the Pennsylvania Minimum Wage Act (PMWA), and that “the state and federal definitions of compensable time are similar to each other.” Consequently, the district court granted the employers’ motion for summary judgment. The employees appealed and moved to certify a question of law to the Pennsylvania Supreme Court to resolve this issue.

Certification of questions. Pennsylvania Rule of Appellate Procedure 3341 governs certification of questions of law from federal courts. Three elements are required to warrant certification. First “all facts material to the question of law to be determined” must be undisputed. Second, the question of law must be “one that the petitioning court has not previously decided.” Third, there must be special and important reasons, including a question of first impression and public importance; there are conflicting decisions in other courts; or the question involves and unsettled issue of constitutionality, construction or application of the statute, among others.

Incorporation of Portal-to-Portal Act. The Pennsylvania Supreme Court has adopted a lower-court decision approving the use of federal caselaw interpreting the FLSA to interpret the PMWA in some circumstances. In another case, however, the state high court stated that “Pennsylvania may enact and impose more generous overtime provisions than those contained in the FLSA which are more beneficial to employees; and it is not mandated that state regulation be read identically to, or in pari materia with, the federal regulatory scheme.” But the state court has never squarely addressed whether the PMWA incorporated the Portal-to-Portal Act. Thus, the issue raised is one of first impression.

Next, the appeals court rejected the employers’ argument that resolving this issue would be of little public importance. Rather, the appeals court observed that answering the narrow security-screening question necessarily requires answering the broader question of whether the Portal-to-Portal Act applies to PMWA claims. Further, the court noted that this questions touches many more Pennsylvania workers.

Moreover, the appeals court noted that the parties agreed that the issue in this case concerns a Pennsylvania statute, and the issue is unsettled. Here, the question of whether the PMWA incorporates the Portal-to-Portal Act involves construction of the statute and its application (how it applies to the employees’ security-screening claims). Thus, this factor weighed in favor of certification as well.

De minimis defense. In both the district court and on appeal, the employers have advanced an alternative argument that the security screening time at issue is not compensable under the de minimis doctrine. Like the Portal Act issue, the material facts are not in dispute and the Sixth Circuit has never considered whether the de minimis doctrine may apply to PMWA claims. Additionally, the state of the law on this issue is also unsettled. The PMWA and its regulations do not expressly endorse the doctrine, and Pennsylvania precedent addressing the de minimis doctrine in this context is sparse.

Further, like the Portal Act question, this issue concerns construction and application of the PMWA, and its resolution is likely to affect a broad swath of workers and employers in Pennsylvania. Accordingly, the appeals court found that the factors of Rule 3341(c) supported certification here as well.

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