(1) Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform; and
(2) Activities which are preliminary or postliminary to the principal activity or activities, which occur either prior to the time or on any particular work day at which such employee commences, or subsequent to the time on any particular work day at which he or she ceases such principal activity or activities.
In Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court considered whether time expended by employees following the end of a work shift to go through a security checkpoint is compensable. In other words, the Supreme Court considered whether such security checks are activities that are preliminary or postliminary to the principal activity or activities of the job itself.
In this case, two employees of Integrity Staffing, a subcontractor for Amazon.com, alleged that they were entitled to wages for the time spent waiting to undergo security screenings following their work shifts. The screenings were intended to thwart employee theft of products. During the screening process, employees removed items such as wallets, keys and belts from their bodies and passed through metal detectors. Such screening time amounted to roughly 25 minutes each day. The employees argued that more scanners could have been installed to reduce the waiting time, and that because the screenings were conducted to prevent employee theft, the employees were entitled to wages for such screening time.
In a 9-0 decision, the Supreme Court held that the security screenings in this case were non-compensable. In making that determination, Justice Thomas wrote that such screenings were not the principal activity or activities that the employees were employed to perform. He reasoned that the employer did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipping to Amazon customers. The Court also concluded that the security screenings were not “integral and dispensable” to the employees’ duties as warehouse workers.
The opinion illustrates that it is erroneous to focus solely on whether the employer required a particular activity (like security screenings) to determine whether time at the workplace is compensable. Rather, the test for compensability is whether the activity is tied to the productive work that the employee is employed to perform.
In other cases, the consideration of such preliminary or postliminary activities have caused the Supreme Court to reach varying outcomes regarding compensability. For example, the Supreme Court has held that the time that battery plant employees spend showering and changing clothes is compensable because the chemicals in the plant are toxic to human beings, and the showering/changing is integrally related to that work. Similarly, the time that meat packer employees spend sharpening their knives (because dull knives would slow down production on the assembly line) was compensable time to the meat packer employees.
By contrast, the Supreme Court has held that the time that poultry plant employees spend waiting to don protective gear was not compensable because such donning was deemed to be not integrally related to the production on the assembly line.
Upshot: What guidance do these cases offer to employers who want to fairly compensate their employees, but on the other hand, do not want to pay for time that is not compensable? Consider whether the activity is integral and indispensable to the principal activities that an employee is employed to perform. That analysis itself is not necessarily clear cut. Consider reviewing your conclusions with professionals in the wage and hour field who are aware of relevant court decisions in this area, since the outcome tends to depend on specific facts and circumstances. The wrong decision by the employer regarding compensability could lead to lawsuits and back pay, penalties and attorney fees.
