In 1843 the Scottish writer Thomas Carlisle wrote that every man had a right to “a fair day’s wages for a fair day’s work.” Nearly 100 years later President Franklin Roosevelt referred to “a fair day’s pay for a fair day’s work” in a 1937 speech urging Congress to pass the Fair Labor Standards Act. Congress obliged a year later, and the FLSA was born. The courts and Congress have grappled with what constitutes a fair day’s pay for a fair day’s work ever since.

One of the first cases to reach the U.S. Supreme Court following passage of the FLSA was brought by employees at a dishware factory who argued that the FLSA required compensation for activities such as waiting in line to punch a time clock in and out, walking from the time clock to the work stations, putting on aprons and overalls, and other preliminary and postliminary activities. In its 1946 decision the Supreme Court largely agreed, holding that “the statutory work week includes all time during which an employee is necessarily required to be on the employer’s premises . . .”

This decision opened the litigation floodgates, as companies were sued for billions of dollars of compensation for similar “preliminary” and “postliminary” activities. In response, in 1947 Congress amended the FLSA by passing the Portal-to-Portal Act. The Portal-to-Portal Act provides generally that so long as an employee is engaging in activities that benefit the employer, the employer must pay the employee. The Portal-to-Portal Act clarified, though, that an employee need not be paid for time required for “traveling to and from the actual place of performance of the principal activity or activities which such employee is to perform,” or for “activities which are preliminary or postliminary to said principal activity or activities” unless there is a custom or contract which provides otherwise.

Subsequent court cases and regulations issued by the Department of Labor have further clarified that preliminary and postliminary activities such as time spent waiting to obtain protective equipment, checking out of the workplace and waiting in line to do so, changing clothes, waiting in line to receive paychecks, walking from the parking lot to the building, and washing up or showering are not normally compensable under the FLSA.

Still, employees and employers continue to litigate, and courts continue to grapple with, what preliminary and postliminary activities are compensable under the Portal-to-Portal Act. As we reported in the February ELR, in January the U.S. Supreme Court issued its decision in Sandifer v. United States Steel Corporation, and held that a group of unionized steelworkers does not have to be paid for time spent “donning and doffing” safety gear before and after their work shifts. The workers had argued that flame-retardant jackets and pants, work gloves, hard hats, and other items they had to wear were “personal protective equipment,” not clothing. But a unanimous Supreme Court disagreed, holding that putting on and taking off safety gear was not sufficiently different from changing clothes, which is not compensable.

Now, on the heels of its donning and doffing case, the U.S. Supreme Court has granted certiorari to consider another issue making the rounds around the country – whether time spent by employees in security screenings is compensable under the FLSA and the Portal-to-Portal Act. Integrity Staffing Solutions provides staffing for warehouses owned by Amazon.com. Integrity’s employees’ primary job duties involve retrieving items from inventory at the warehouses to fill orders placed by Amazon.com customers. After the employees punch out at the end of their shift, they are required to go through a short security screening in which they remove personal belongings from their pockets and walk through a metal detector.

A group of Integrity’s former warehouse employees filed a class action against Integrity in federal court in Nevada, seeking back pay and overtime for the time they spent in the security screenings. The District Court dismissed their claim, holding that such time was not “integral and indispensable” to the employees’ principal activities of “fulfilling online purchase orders.” But the Ninth Circuit Court of Appeals reversed and reinstated the class action, holding that the security screenings were “required” by Integrity and were performed for “Integrity’s benefit.”

In doing so, the Ninth Circuit broke from decisions by the Second and Eleventh Circuits which had held that employees are not entitled to be paid for time spent in security screenings. The Second Circuit case involved employees of a nuclear power plant who were required to go through security procedures upon entering and leaving the plant. In rejecting the employee’s claim, the Second Circuit emphasized that “security-related activities” are “modern paradigms of the preliminary and postliminary activities described in the Portal-to-Portal Act, in particular, travel time” – those activities being non-compensable. The Eleventh Circuit case involved construction workers at Miami International Airport who were required to pass through a single security checkpoint to reach their worksites inside the airport. The Eleventh Circuit rejected the employees’ claim that the security screenings were necessary in order to do their jobs.

The Integrity Staffing case is not expected to be taken up by the Supreme Court until its next term, which begins in October. But when the Supreme Court finally decides the issue of whether time spent in security screenings is compensable, the Court will settle yet another question of what constitutes a fair day’s wages for a fair day’s work.

By Jon E. Brightmire, jbrightmire@dsda.com