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To Pay or Not to Pay: What Counts as Time Worked Under the FLSA

Employers frequently struggle to determine whether they must pay workers for time spent at the beginning and the end of the work day. I am happy to report some good news for employers in this area. The Supreme Court unanimously ruled on December 9, 2014 that the Fair Labor Standards Act (FLSA) does not require employers to pay employees for time spent waiting to undergo and undergoing security screenings. While many employers do not screen their employees after each shift, the reasoning used by the Supreme Court can be used in other contexts to determine whether time is compensable under federal laws.

The decision, Integrity Staffing Solutions, Inc. v. Busk, is important for all employers because it is helpful in applying the “integral and indispensable” test. The test is used to determine the compensability of activities that do not qualify as principal activities of an employee. The “integral and indispensable” test says that an activity is “‘integral and indispensable’ if it is an intrinsic element of the employee’s principal activities and one with which the employee cannot dispense if he is to perform his principal activities.” Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, 2014 WL 6885951, at *5 (U.S. Dec. 9, 2014)

The case involved employees of Integrity Staffing Solutions who packaged products at an Amazon warehouse. The employees were required to undergo security screenings after each shift to prevent employee theft. The screening process took roughly 25 minutes per day. The plaintiffs argued that the time should be compensable because the employer required the post-shift screenings for the employer’s benefit.

The Supreme Court rejected the plaintiffs’ argument because it was inconsistent with Congress’ amendment of the FLSA in the Portal-to-Portal Act, which narrowed the scope of compensable work. The Portal-to-Portal Act exempts from compensation activities that are done before or after the principal activities that the employee is employed to perform. The court reasoned that the security screenings were not integral and indispensable to the employee’s main warehouse duties, and thus, not compensable under the FLSA. The employees were employed to package products for shipment, not to undergo security screenings. The security screenings were not part of the employees’ principle duties and were exempted from compensation under the FLSA. The Supreme Court was not persuaded by the fact that the employer required the employees to undergo the security screenings. The fact that an employer requires an activity is not enough to make it compensable. The Supreme Court held that more is required.

The Supreme Court’s decision is not the end of this issue. Determining what counts as time worked under state and federal laws continues to present unique challenges for employers. The Supreme Court’s decision will help employers determine what counts as time worked under federal laws, but provides no help with respect to state laws. Wisconsin laws are similar to federal laws in this area. However, Wisconsin laws are very protective of employee rights. It is an open question whether a Wisconsin court would find similarly if presented with the same issue. If there is ever a doubt about proper compensation, it is a good idea to consult your DeWitt attorney.

About the Author

Jordan Rohlfing is a senior associate at DeWitt LLP. She is an active member of DeWitt’s Litigation, Labor & Employment Relations, and Background Screening practice groups. She is dedicated to providing top-quality legal services for all of her clients. She regularly counsels businesses with respect to issues and claims that arise under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Wisconsin Fair Employment Act, the Family and Medical Leave Act, the Fair Labor Standard Act, the National Labor Relations Act, and many other federal and state laws related to discrimination, harassment, retaliation, and wage and hour issues, among others.

Contact Jordan by email or phone at (608) 283-5509.

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