Compensable activities under FLSA still unclear after unanimous U.S. Supreme Court ruling in Integrity Staffing Solutions v. Busk

Federal law requires an employer to pay an employee for any activity that is integral and indispensable to the job they were hired to do. But what is an integral and indispensable activity? A recent U.S. Supreme Court decision that has been making headlines— Integrity Staffing Solutions v. Busk— tries to answer that question.

In Integrity Staffing Solutions v. Busk, employees of Integrity Staffing Solutions were tasked with retrieving products in Amazon warehouses, and packing them for delivery. At the end of each shift, Integrity employees were forced to undergo about a 25-minute security screening before they could leave work where the time was uncompensated. Integrity employees involved in the suit sued for compensation under the Fair Labor Standards Act (FLSA), but in a unanimous decision, the U.S. Supreme Court ruled that they were not entitled to compensation under the FLSA.

In its decision, the U.S. Supreme Court looked closely at the Portal-to-Portal Act of 1947, which exempted employers from future lawsuits that sought payment for preliminary or postliminary activities, or activities “which occur either prior to the time on any particular workday at which such employee commences, or sub­sequent to the time on any particular workday at which he ceases, such principal activity or activities.” 29 U.S.C. §254(a).

Under the FLSA, an employer must pay for any task that is an “integral and indispensable part” of that employee’s principal activities. In short, if the activity in question is an intrinsic part of the work that the employee was hired to perform, and if the activity must be done to perform their job, then an employer must pay for that time. So, what kinds of activities require payment? That’s still unclear.

While the decision in Integrity Staffing Solutions v. Busk was unanimous, it hardly clarified what activities employees should be compensated for under the FLSA. For example, while Integrity Staffing Solutions v. Busk ruled that time spent in a security line was not compensable under the FLSA, the Eleventh Circuit[1] previously ruled that employers may have to pay for an employee’s time spent in a security line if the checkpoint was required by federal law, and not by the employer. While changing into your work clothes is generally not considered an integral and indispensable part of your work, the Second Circuit ruled that even time spent putting on, and taking off, safety equipment at a power plant was not compensable under the FLSA[2]; a decision that was supported by the U.S. Supreme Court earlier this year[3]. Courts in California and Arizona agreed with the Second Circuit but reasoned that if an employee could change into their work clothes at home, then they shouldn’t be compensated under the FLSA[4]. However, to muddle things, a court in California later ruled that changing activities could be compensable under the FLSA even if they did not take place on the employer’s premises[5]. And in a decision that further restricted employees’ compensable time, the U.S. Supreme Court ruled that employers do not have to pay for the time that employees spend in line, waiting to retrieve supplies to perform their job.[6]

As the above cases show, what constitutes a compensable activity under the FLSA varies by the specifics of the case, and even the location of the lawsuit. Even though many employers are compliant with the FLSA, the threat of a lawsuit can create doubt on seemingly simple issues. And with FLSA lawsuits increasing at a rapid rate, up 438%from 2000, the threat of multiple, nuisance lawsuits could put any employer at financial risk. As such, having an attorney look over your existing policies can help limit the exposure you may face in the future. For questions or concerns about compensable activities under the FLSA or related policies, feel free to contact me or any of my colleagues of the Burns White Employment Group.

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[1] Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340 (11th Cir. 2007)
[2] Gorman v. The Consolidated Edison Corp., 488 F.3d 586 (2d Cir. 2007)
[3] Sandifer v. US Steel Corp., 134 S. Ct. 870 (2014)
[4] Martin v. City of Richmond, 504 F. Supp.2d 766 (N.D. Cal. 2007); Abbe v. City of San Diego, Nos. 05cv1629 DMS (JMA), 06cv0538 DMS (JMA), 2007 WL 4146696 (S.D. Cal. Nov. 9, 2007); and Bamonte v. City of Mesa, No. CV 06-1860-PHX-NVW, 2008 WL 1746168 (D. Ariz. Apr. 14, 2008)
[5] Lemmon v. City of Leandro, 538 F. Supp. 2d 1200 (N. D. Cal. Dec. 7, 2007)
[6] IBP, Inc. v. Alvarez, 546 U.S. 21 (2005)
Sammy Sugiura Jr.
As a former Assistant Public Defender, Associate Sammy Sugiura Jr. brings extensive courtroom experience in criminal and civil matters to his litigation practice at Burns White. His specialties include: Litigation, Financial Institution Litigation and Employment Law.

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