The U.S. Supreme Court granted certiorari on March 3, 2014, in the matter styled Integrity Staffing Solutions v. Busk, to review the compensability of time spent in security screening under the Fair Labor Standards Act (FLSA). At issue is the recent decision from the Ninth Circuit holding that employees can state a claim under the FLSA for an employer’s failure to compensate them for time spent in pre or post shift security screening. Busk et al. v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The question is of great import for the nation’s employers as security screening is becoming an ever more common practice in the workplace. Indeed, the Ninth Circuit’s determination in Busk has already triggered a spate of class-action suits filed by employees seeking back-pay for time spent undergoing pre or post shift security measures. If allowed to stand, the Ninth Circuit’s determination could result in massive retroactive liability stemming from such suits.
Respondents in Integrity Staffing Solutions v. Busk, are former Integrity Staffing employees who were placed by the staffing agency on temporary assignments working at Amazon.com warehouses in Nevada filling orders placed by Amazon.com customers. In October 2010, a temporary employee filed a class action complaint against Integrity Staffing in the U.S. District Court for the District of Nevada alleging that the failure to compensate employees for time spent passing through security screenings violated the FLSA and parallel Nevada state law. See Busk v. Integrity Staffing Solutions, No. 2:10-cv-1854 (D. Nev. Dec. 15, 2010).
Integrity Staffing moved to dismiss the action arguing that, pursuant to the Portal-to-Portal Act, the security screening time alleged in Busk was neither “integral” nor “indispensable” to the employees’ principal activities of processing and filling online orders and were thus not compensable. On July 19, 2011, the district court, agreeing with Integrity Staffing, granted the request for dismissal, citing several cases that had come to similar determinations in other circuits. On appeal, the Ninth Circuit reversed the district court’s order, stating that the cases relied upon in the lower court were distinguishable from the circumstances presented in Busk. Specifically, the Ninth Circuit drew distinctions between the cases cited by the district court that dealt with workplaces like airports and power plants and the security screening at issue in Busk, which it characterized as being used “to prevent employee theft, a concern that stems from the nature of the employee’s work . . . .” Based on the distinction, the Ninth Circuit held that as alleged in the complaint, the security screening time was integral to employees’ work, was for the benefit of their employer, and was therefore potentially compensable. In making its determination, the Ninth Circuit effectively opened the door to claims premised on employers’ security screening practices, once widely considered to pose little chance of liability.
The Ninth Circuit’s holding in Busk represents a departure from the case law established in other circuits and is the first decision from any circuit to hold that pre or post shift security screening may constitute compensable time. In its Petition for Certiorari, Integrity has argued that the distinction drawn by the Ninth Circuit is inconsistent and inconsequential, and that intervention is required to reestablish a uniform rule and to correct the Ninth Circuit’s deeply flawed interpretation of preliminary and postliminary activity under the Portal-to-Portal Act.