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Is Internal Loss Prevention Stealing Workers’ Wages?

In Johnny Cash’s One Piece at a Time, the singer tells the story of an assembly line worker who longs for one of the cars he spends his days building. Instead of pinching pennies, he devises a plan to acquire that car little by little. With an over-sized lunchbox and some help from friends, the worker smuggles home pieces every day over the course of a couple of decades. By retirement, he ends up with a Frankenstein of an automobile whose many components required the entire courthouse staff to register and results in a title weighing sixty pounds.

The dream of a “psycho-billy Cadillac” may be a little far-fetched, but internal theft by employees remains a real concern for companies, particularly retail stores and other business that sell or warehouse popular, pricey, or scarce consumer products. To combat the threat, many businesses subject employees and their belongings to screenings for stolen items at the end of their shifts. In environments like large department stores, where shifts are staggered and the searches might take only a minute or two, the delay may be inconvenient at times, but it would be tough to argue that it’s overly burdensome.

On the other hand, there are facilities doing these kinds of checks with dozens, if not hundreds, of workers whose shifts begin and end together. As anyone who’s been though a TSA line at an airport can understand, funneling that many people through checkpoints is not a quick endeavor. Instead of a two-minute delay, people at the back of the line might be waiting 20 minutes or more after their shift ends just to leave the building. Should they be compensated for that time?

That’s the central question of Integrity Staffing Solutions v. Busk, a case heard at the US Supreme Court this morning. Jesse Busk, who worked via the Integrity temporary agency for an Amazon warehouse in Las Vegas, claimed that after 12-hour shifts, he and 200 other workers would wait up to almost half an hour after their shifts ended to get through a security checkpoint–all off the clock. Busk says that time should be included in his workday, while the temp agency says it should not. The US Court of Appeals for the Ninth Circuit agreed with Busk. Obama administration lawyers from the Labor and Justice Departments filed briefs siding with the staffing agency, equating the situation with an Eleventh Circuit case that ruled time spent in TSA lines by workers doing construction projects at airports didn’t merit compensation. Now it’s up to the nation’s high court to decide which of these different precedents might apply here.

If the security checks are considered “postliminary” activities under the 1947 Portal-to-Portal Act, part of the Fair Labor Standards Act (FLSA) that helped to define when a workday begins and ends, Integrity Staffing may prevail on its argument that the security checkpoints are not “integral and indispensable” to the workers’ principal activities. Busk’s counterargument in his brief, noting that the security checks are mandatory, is fairly straightforward:  “If the company tells you to do it, it doesn’t matter whether it’s related to what else you do on the job.” That alone, he argues, should make it pass the “integral and indispensable” threshold.

Based on today’s oral arguments, the Supreme Court may not be so inclined to agree with Busk and the Ninth Circuit. Chief Justice John Roberts said that going through the security checkpoint was not a principal activity, and Justice Antonin Scalia added that it was “not indispensable to taking care of the activity in the warehouse.” Justice Samuel Alito buttressed his colleagues’ points by noting that “You wouldn’t pay anybody just to come in and go through security.” Even Justice Stephen Breyer, part of the Court’s more liberal wing, hinted that the US Labor Department’s siding with Integrity could doom things for Busk, saying that, as a worker, he would look to help from the Labor Department because “they are the ones who are in charge of this…and they are saying you lose.”

Ultimately, how the justices decide in this case will have major ramifications for workers and businesses throughout the country, especially in the event that the Court sides with Busk. A Busk victory could spawn thousands of similar suits for back pay and force businesses to completely reconsider their operations. On the other hand, a win for Integrity Staffing would leave labor forces around the country–whether unionized or not–incredibly unsettled about their rights in the workplace, which could lead to antagonistic employee-employer relationships. More directly, however, a reversal of the Ninth Circuit’s decision will create legal limbo for similar suits that followed against companies like CVS and Apple, and that represent tens of thousands of workers.

It will likely be a few months before we know how the Supreme Court sees this situation, but, in the meantime, if you are employed in Georgia or Tennessee and have questions about being fairly compensated or other concerns under the FLSA, contact our experienced Atlanta employment law attorneys today at 1-877-986-5529. Mays & Kerr represents both plaintiffs and defendants in employment matters, including employment discrimination, wage and hour, FMLA, and more. With offices in Atlanta and Nashville, we offer a client-centered philosophy and strive to accomplish our clients’ goals as if they are our own.

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