News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Supreme Court: Your Boss Can Waste Your Time Without Paying You

Yesterday, the United States Supreme Court ruled that, under federal law, employees only have to be paid for time spent working or on activities necessary to perform their jobs – even if their employers require them to be there longer. In Integrity Staffing Solutions, Inc. v. Busk, employees of a contractor for were not paid for time spent, after the ends of their shifts, waiting for an anti-theft security screening. Although the employees claimed that the employer could have eliminated the wait time by using more metal detectors or staggering shifts, it did not do so, and so they waited as much as 25 minutes every day without pay.

The Fair Labor Standards Act (FLSA) sets a national minimum wage and provides that employers, with some exceptions, must pay time-and-a-half for overtime (more than 40 hours per work week). In general, a work week includes all the time that an employee is required to be at the office or work location. However, a 1947 law called the Portal-to-Portal Act carved out exceptions to this principle. At issue in the Busk case is an exception for activities “preliminary to or postliminary to” an employee’s “principal activity or activities.” The “principal activity” is whatever the employee is hired to do – so in the Busk case, the “principal activity” is finding items in a warehouse and shipping them to Amazon customers. The “principal activity” also includes activities that are necessary to perform the job safely (putting on a protective suit in a chemical factory) or effectively (sharpening a knife in a butcher shop).

Justice Thomas, writing for a unanimous Court in Busk, held that the security screening was not necessary for the employees’ jobs: “Integrity Staffing did not employ its workers to undergo security screenings.” Even though the screenings were a job requirement, the Court ruled that they were the type of activity Congress had exempted in the Portal-to-Portal Act.

This decision embodies the limitations of federal laws protecting workers in this area. Many such laws date back to the New Deal era and have been sporadically updated since. The Portal-to-Portal Act itself was passed, as Justice Thomas notes, in a backlash after the Supreme Court interpreted the FLSA broadly in the 1940’s. Specifically, the Court had required overtime for the time spent walking from a time clock to a work bench and from a mine entrance to an underground work area, leading unions and employees to file lawsuits seeking billions of dollars in overtime. Congress responded, within months and on an “emergency” basis, by narrowing the protections for employees.

As the law stands, the employer can set requirements that are unrelated to an employee’s real job without paying overtime for the time and inconvenience. It is understandable why a company running a warehouse would want to institute checks to prevent theft. But an employee’s time off the clock should be their own, and not spent waiting around at work. Under federal law, such an employee has little recourse. Justice Thomas states that such issues may be “properly presented to the employer at the bargaining table… not to a court in an FLSA claim,” and not one Justice disagrees.

However, states can and do create protections for workers that are broader and more generous than those set by federal law. In Massachusetts, applicable regulations define “working time” as including “all time during which an employee is required to be on the employer’s premises… or to be at the prescribed work site….” And Massachusetts has no corollary to the Portal-to-Portal Act. Therefore, if the facts in the Busk case took place in Massachusetts, it is likely that the employer would be required under state law to pay the employees for the time spent waiting to leave the warehouses.

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