Labor & Employment Law Daily Justices will not revisit compensability of Amazon warehouse workers’ security screening time
Wednesday, October 9, 2019

Justices will not revisit compensability of Amazon warehouse workers’ security screening time

By Pamela Wolf, J.D.

After remand, the Sixth Circuit reached a conclusion regarding the definition of “work” that Amazon and Integrity Staffing Solutions contend is in conflict with the High Court’s earlier ruling.

On October 7, the Supreme Court declined to take up for the second time whether Amazon warehouse workers must be compensated—not under the FLSA this time, but under state law—for the time they spend passing through security screening.

Question for Court. In Integrity Staffing Solutions Inc. v. Busk (18-1154) the Justices were asked to determine whether the Portal-to-Portal Act modified the FLSA’s broad, pre-1947 definition of “work,” and whether the FLSA’s definition of “work” (as incorporated into Nevada state law) requires exertion beyond the minimal effort involved in passing through a security screening.

Earlier High Court ruling. In 2014 the Supreme Court ruled in this case that Amazon warehouse workers were not entitled to pay under the FLSA for the time spent waiting to undergo the security checks before leaving the warehouse each day. The Court reasoned that the screenings were “noncompensable postliminary activities” under the Portal-to-Portal Act, so the workers were not entitled to be paid for that time. However, the state-law claims in the case were unresolved.

State law claims on remand. On remand, the Sixth Circuit determined that the High Court ruling did not foreclose claims under Nevada and Arizona law that plaintiffs working at Amazon warehouses were unlawfully denied compensation for time spent in post-shift security screenings. The appeals court found that neither state’s statute incorporated the federal Portal-to-Portal Act, which exempts certain “postliminary activities” from compensable working time. Although dismissal of the Nevada claims was reversed, the Arizona plaintiffs did not allege a workweek in which they failed to receive minimum wage, as required by that state’s law, so dismissal of the Arizona claims was affirmed.

Petition for certiorari. Amazon, which had been added to the suit, and Integrity Staffing returned to the Supreme Court, stressing that after remand, the divided Sixth Circuit ruled that the exact same security screenings the Supreme Court had said were not compensable are compensable under the state law’s incorporation of the FLSA’s current definition of “work.”

The appeals court had correctly concluded that the plaintiff’s state-law claims depend on that definition because it’s incorporated without alteration into state law, the employers said. “But the court then misinterpreted the FLSA’s definition of “work” in two ways,” they wrote in their petition for certiorari. “First, the court held—in conflict with Busk I and several circuit courts—that the Portal-to-Portal Act did not actually change the pre-1947 definition of ‘work.’ Second, it held—again in conflict with several circuit courts—that ‘work’ does not require physical or mental exertion.”

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