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If your employees are required to go through daily end-of-shift security clearances as part of their job, does the Fair Labor Standards Act (“FLSA”) require you to pay them for that time?  The Federal Circuit Courts are divided, but the U.S. Supreme Court will determine this issue once and for all, having granted certiorari in Integrity Staffing Solutions, Inc. v. Jesse Busk and Laurie Castro.

The legal issue in this case hinges on the Portal-to-Portal Act of 1947, which amended the FLSA.  The key question is whether required security checks are “preliminary” and/or “postliminary” activities that are “integral and indispensable” to the employee’s principal activities.  If so, the employees should be paid for the time; if not, no pay is due.  To be “integral and indispensable” the work must either be necessary to the principal worked performed or benefit the employer.  In deciding the case, the Ninth Circuit found the facts in Integrity distinguishable from existing case law.  The Court recognized that other Circuits have held security checks were not “integral and indispensable,” (and therefore no pay was due), but that these decisions were made because everyone who entered a facility was required to go through a security check (e.g., at an airport or a nuclear facility).  In Integrity, the only people who had to go through these security checks were employees.  They went through clearances when leaving (taking up to 25 minutes) to ensure that none of the products from the warehouse where they worked (and where Amazon.com Inc. stored its products), had left with them.  Since the activities alleged were done for the benefit of the employer (to prevent employee theft), an argument could be made that they were “integral and indispensable.”  Therefore, the Ninth Circuit reversed the lower court’s dismissal of the claim and permitted the plaintiffs to proceed.  Integrity’s counsel then sought review by the U.S. Supreme Court.

While we have to wait to see what the U.S. Supreme Court decides, the ruling will hopefully clarify what an employer’s obligations are for the future.  In the interim, if you are unsure about whether to pay your employees for their “preliminary” and “postliminary” requirements, you should consult counsel.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.