Court hears dispute over pay for security checks

SAM HANANEL
Associated Press

WASHINGTON (AP) — Workers who fill customer orders for Internet retailer Amazon might be out of luck in their quest to be paid for time they spend going through security checkpoints each day.

Several Supreme Court justices expressed doubts Wednesday during arguments over whether federal law entitles workers to compensation for security measures to prevent employee theft.

The case is being watched closely by business groups concerned that employers could be liable for billions of dollars in retroactive pay for security check procedures that have become routine in retail and other industries.

Workers have battled for decades with employers over what tasks they should or shouldn’t be paid for. The Supreme Court has previously ruled that workers must be paid for time putting on protective gear for work, but not for time waiting to take it off. And the court has found that butchers deserve to be paid for time sharpening their knives, which are essential to working at a meatpacking plant.

The latest dispute involves two former workers at a Nevada warehouse who say their employer, Integrity Staffing Solutions, Inc., made them to wait up to 25 minutes in security lines at the end of every shift. Integrity provides staffers for Amazon warehouses.

Amazon spokeswoman Kelly Cheeseman says the company’s data shows that warehouse employees walk through security screenings “with little or no wait.”

A federal appeals court ruled last year that the workers, Jesse Busk and Laurie Castro, deserved to be paid because the anti-theft screenings were necessary to the primary work performed by warehouse workers and it was done for the employer’s benefit.

Mark Thierman, lawyer for the workers, ran into trouble Wednesday when he tried to pursue the argument that walking through security was a principal activity of the workers’ job duties that requires compensation under the Fair Labor Standards Act.

“But no one’s principal activity is going through security screenings,” said Chief Justice John Roberts. “It may be part of that, that you go through security at the end of the day, but that doesn’t make it a principal activity.”

Justice Antonin Scalia said the security check “is not indispensable to taking care of the activity in the warehouse.”

“You wouldn’t pay anybody just to come in and go through security,” said Justice Samuel Alito.

Thierman argued that the screening was a “discrete act” that happened only after workers had clocked out and handed in their tools.

“It’s work because you are told to do it,” Thierman said.

Integrity claims no extra pay is required because the security clearances are unrelated to the workers’ core job duties. The company’s attorney, Paul Clement, said the screenings are “materially similar to the process of checking out at the end of the day or waiting to do so.”

Clement, a former U.S. solicitor general, said a federal law called the Portal-to-Portal Act specifically exempted employers from paying for so-called “preliminary and postliminary” activities such as time spent commuting, waiting to pick up protective gear or waiting in line to punch the clock.

Justice Elena Kagan asked whether keeping merchandise safe from theft is an essential part of what Amazon does. But Clement said that doesn’t make it “indispensable” to the work performed by the warehouse employees, which is what the law provides.

The Obama administration is siding with the company. Justice Department attorney Curtis Gannon argued that the security screenings were not “integral and indispensable to the workers’ jobs. He cited a 1947 Labor Department opinion letter that makes no distinction between searches for general security and those to prevent theft, finding neither requires pay.

Justice Stephen Breyer said if he was in the workers’ situation, he’d look to the Labor Department.

“They are the ones who are in charge of this,” Breyer said. “And they are saying you lose.”

In response to a question from Justice Ruth Bader Ginsburg about what kind of exit check would be compensable, Gannon said employees must be paid to take a drug test, which he described as far more intrusive and time-consuming than a security check.

The 9th Circuit ruling last year has spawned at least four class-action lawsuits against Amazon.com seeking compensation for time that nearly 100,000 workers have spent in post-shift security screenings. Similar suits are pending against CVS Pharmacy and Apple Inc., seeking to represent tens of thousands of workers.

Business groups, including the U.S. Chamber of Commerce, say in court filings that security screenings are essential to prevent employee theft, which costs the retail industry an estimated $16 billion a year.

The case is Integrity Staffing Solutions Inc. v. Busk, 13-433.

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