Supreme Court Grants Cert To Review Compensability Of Security Screening Time

The U.S. Supreme Court granted certiorari on March 3, 2014, in the matter styled Integrity Staffing Solutions v. Busk, to review the compensability of time spent in security screening under the Fair Labor Standards Act (FLSA). At issue is the recent decision from the Ninth Circuit holding that employees can state a claim under the FLSA for an employer's failure to compensate them for time spent in pre or post shift security screening. Busk et al. v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The question is of great import for the nation's employers as security screening is becoming an ever more common practice in the workplace. Indeed, the Ninth Circuit's determination in Busk has already triggered a spate of class-action suits filed by employees seeking back-pay for time spent undergoing pre or post shift security measures. If allowed to stand, the Ninth Circuit's determination could result in massive retroactive liability stemming from such suits.

Respondents in Integrity Staffing Solutions v. Busk, are former Integrity Staffing employees who were placed by the staffing agency on temporary assignments working at Amazon.com warehouses in Nevada filling orders placed by Amazon.com customers. In October 2010, a temporary employee filed a class action complaint against Integrity Staffing in the U.S. District Court for the District of Nevada alleging that the failure to compensate employees for time spent passing through security screenings violated the FLSA and parallel Nevada state law. See Busk v. Integrity Staffing Solutions, No. 2:10-cv-1854 (D. Nev. Dec. 15, 2010).

Integrity Staffing moved to dismiss the action arguing that, pursuant to the Portal-to-Portal Act, the security screening time alleged in Busk was neither "integral" nor "indispensable" to the employees' principal activities of processing and filling online orders and were thus not compensable. On July 19, 2011, the district court, agreeing with Integrity Staffing, granted the request for dismissal, citing several cases that had come to similar determinations in other circuits. On appeal, the Ninth Circuit...