Security Screens May Breed Insecurity


Employers who conduct employee security screens or are considering doing so should be aware of potential ramifications under the Fair Labor Standards Act.  The United States Supreme Court currently is reviewing whether time spent undergoing security screenings constitutes compensable hours worked.  If the answer is “yes,” employers who require their non-exempt employees to pass through security screens – which may delay their departure at the end of a workday – could face liability for additional wages and penalties if they have not paid employees for this time.

The pending case is Integrity Staffing Solutions, Inc. v. Busk, No. 13-433.  The underlying court of appeals decision held that warehouse workers who provided fulfillment tasks for Amazon.com should receive compensation for time spent in security screenings at the end of their work shift.  The workers’ primary job duties were to retrieve items from inventory to fill orders placed by Amazon.com customers.  According to the opinion from the Ninth Circuit Court of Appeals, the workers were required to pass through a security clearance at the end of each shift, for which they were not compensated.  Employees waited up to 25 minutes to be searched; removed their wallets, keys and belts; and passed through metal detectors.  The stated reason for the searches was to minimize loss of product from warehouse theft.

The issue before the Supreme Court is whether the security screens constitute postliminary activities, which generally are not compensable work time under the FLSA.  For such activities to be compensable, the activities must be integral and indispensable to the employee’s principal activities.   The Ninth Circuit found that security screens met this test, because the employer allegedly required the screening to prevent employee theft, “a concern that stems from the nature of the employees’ work.”   On appeal to the Supreme Court, the employer has argued that these activities are similar to non-compensable activities such as punching a time clock, walking from a parking lot, waiting to receive a paycheck, or waiting to pick up protective clothing.  The employer also argued that federal appeals courts elsewhere in the country rejected the very same reasoning adopted by the Ninth Circuit.

For employers, the current status remains cloudy.  The Supreme Court may well overturn the Ninth Circuit decision, but employers who perform security screenings or may do so in the near future should review their practices with legal counsel to avoid unnecessary risks until the issue is decided.

This article was preceded by U.S. Supreme Court Defines “Changing Clothes” Under FLSA, which explores another aspect of compensable labor under FLSA.

If you have any questions regarding security screens or other aspects of Employment Law, please contact Vern Squires.

 

Vernon P. Squires
Commercial Litigation, Construction Law, Employment Law, Intellectual Property and Trade Secret Litigation, Labor & Employment Law