Currently, there is a split in the various Federal Circuit Courts as to whether an employer must pay an employee for time spent in security screenings under the Fair Labor Standards Act. The Eleventh Circuit, which includes Florida, Alabama, and Georgia, and the Second Circuit, have held that the time spent in security screenings is not compensable work time. Other Federal Circuit courts disagree and require employers to pay for this time. However, the U.S. Supreme Court is set to hear oral arguments in the case of Integrity Staffing Solutions v. Busk and will hopefully resolve this issue. We feel that The outcome of the case could have a significant impact on employees are required to submit to security searches before or after they begin their workday including airport employees, constructions workers working in secure facilities and law enforcement officers working in jails or prisons.
Integrity Staffing Solutions v. Busk arises from claims filed by employees of Integrity Staffing Solutions who are required, at the end of each shift, after clocking out, to pass through a security clearance which is designed to prevent employee theft. The employees spend approximately 20-25 minutes being processed through the security clearance and are not paid for this time. The California District Court dismissed the Plaintiffs Complaint based on the decisions of the Second and Eleventh Circuit Courts, but on appeal, the Ninth Circuit Court of Appeals reversed the District Court and distinguished the case from the decisions of the Second and Eleventh Circuit Courts of Appeals.
The issue that the Supreme Court must decide is whether security screenings are “integral and indispensable” part of the employee’s principal work activities. Specifically, the FLSA precludes compensation for activities that are “preliminary” or “postliminary” to the “principal activity or activities,” unless the activities are “integral and indispensable” to the principal activities. In making this determination, the Court has to decide whether the activity is “necessary” to the principal work and done for the employer’s benefit. This is similar to time spent doffing and donning protective gear in a meat packing plants, as these are “integral and indispensable.”
Although there is a distinction between the Second and Eleventh Circuit Court cases which dealt with employees who had to go through security screening when entering a nuclear power plant or airport security screenings (the screenings were required by law), and Integrity Staffing Solutions’ checkpoints (which were required by the employer), we feel that these cases present similar issues. The employees are clearly required to spend significant time in security checkpoints and cannot begin or leave work without completing the process. As such, the checkpoints are an “integral and indispensable” part of the employment.
This case will be decided in the next Supreme Court term that begins in October 2014.