Ambulance attends Safeside

Integrity Staffing Solutions Reno, NV

At 10 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on an overtime pay case involving the after-hours screening of workers as part of a company policy to detect workplace thievery. Arguing for the employer in the case will be Paul D. Clement of the Washington, D.C., law firm of Bancroft PLLC, with twenty minutes of time. Supporting that side, with ten minutes of time, will be Curtis E. Gannon, an assistant to the U.S. Solicitor General, representing the federal government as an amicus


Workers are entitled, under federal law, to be paid for overtime work — that is, beyond forty hours a week. But, since 1947, the law has specified that workers should not receive extra pay for what they may do on the worksite before or after carrying out primary duties. And the Supreme Court has interpreted that change to mean that added pay is not necessary for workplace activity that is not “an integral and indispensable part of the principal activities” of that worker’s shift on the job.

For years, the Supreme Court has struggled to define just when or how that limitation applies. As recently as last January, it confronted that issue again. It barred overtime pay for the extra time in the workplace that a worker takes to put on and take off protective gear needed on the job. It will explore the issue further this Term in

The company in this case is a warehousing firm that provides storage space and order-filling services for companies that sell their goods online, such as the high-volume retailer Also involved are two workers at the company’s Nevada sites in Las Vegas and Fernley — Jesse Busk and Laurie Castro.

Although the company, in taking the case to the Supreme Court, has sought to broaden it into a test of the right of employers to carry out “security screenings” in an era of terrorism and increased sabotage, this particular case had its origins in a company policy of searching workers before they left the plant, to prevent them from stealing the company’s or the clients’ property.

The screening was done as the workers left the two Nevada workplaces at the end of their shifts. Besides suing Integrity, the workers have also filed lawsuits directly against Amazon, aiming at its facilities nationwide, in a class-action effort that may involve as many as 100, 000 workers.

Busk and Castro filed their basic lawsuit against Integrity in 2010, contending that the end-of-shift screening was part of their workday, and that it sometimes kept them at the plant for at least an additional half-hour, part of which was spent simply waiting their turn to be screened. They then had to remove their wallets, keys, and belts and pass through metal detectors. Since this was part of a company policy of trying to minimize warehouse thefts, they argued that it was a necessary part of their workday, thus entitling them to overtime and back pay.

A federal judge rejected their claim, but the U.S. Court of Appeals for the Ninth Circuit reversed, holding that both federal overtime-pay law as well as Nevada labor laws gave the workers a right to be paid for that added time, because the screening was required by the company and was done for its benefit.

The company then took the case to the Supreme Court, raising the single issue of whether the workers were entitled, under federal law, to the added time they spent undergoing the security screening. The workers passed up a chance to answer the appeal, but the Court then asked for a response. The Court granted review on March 3.

Briefs on the merits

Integrity Staffing Solutions’ brief on the merits focused on what it argues is a gap between what the workers normally do in its warehouses and what they do when they go through a screening at the end of their shifts. Because the two are completely unrelated, the employer contended, the screening simply cannot be considered any part of their workday.

The Ninth Circuit, the filing said, based its finding of a right to overtime pay on two notions: the screening was required by the employer, and it was for the employer’s benefit. Those are not valid tests under federal law, the cmployer contended, because that law is keyed to workplace activities that are part of an employee’s normal day.

In its warehouses, according to Integrity, workers like Busk and Castro can fulfill their jobs just by walking through the facility with collection carts, retrieving products from the shelves and packing them up for shipment to customers. The screenings take place elsewhere, when the workday is over, and did not affect their work activity in any way, it added.

A worker could have skipped out a side door to evade the screening, and — although he would have violated company policy by doing so — he would not have failed to fulfill any part of his normal duties on the warehouse floor.

“Congress, ” the brief argued, “drew a clear line between compensable principal duties and non-compensable preliminary and postliminary activities.”

The company used some of the same arguments to counter the workers’ contention that, because they had to wait in line to get screened, they should be paid for that time. Just as walking from the parking lot into and out of the warehouse does not justify overtime pay for that time, neither does staying after work to be screened.

What the Ninth Circuit has done in this case, the filing said, is to try to revive an approach the Supreme Court took before Congress cut it off with the Portal to Portal Act in 1947.

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