Wait, Don’t They Have to Pay Me for That?!: The Compensability of Pre- and Post-Shift Screenings

by | February 19, 2020 | Wage & Hour

Imagine the following:  You show up to work at your employer’s.  They require you to enter on the other side of the building, far away from your workstation.  At this distant entrance, you stand in a long line as your employer’s security guards do bag checks.  After 30 minutes of waiting and being searched, you walk 10 minutes to your workstation.  At the end of the day, you go through it again.  First, walking back to the far end of the building, and then going through 30 minutes of waiting in line and security checks.

All told, you spent more than an hour on your employer’s premises due to the company’s security demands.  Compensable, right?  Maybe, maybe not.

Federal law (the Fair Labor Standards Act or “FLSA”) does set a minimum rate that employees are supposed to be paid for each hour worked.  See 29 U.S.C. § 206.  Likewise, the FLSA provides that unless employees are exempt from overtime, they must be paid one and one-half times their regular rate of pay for each hour of overtime worked in a workweek.  See 29 U.S.C. § 207.  But that begs the question, what qualifies as “work?”

Shortly after the FLSA was passed, the terms “work” and “workweek” were interpreted broadly.  See Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944) (defining “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business”); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946) (“the statutory workweek includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace, the time spent in these activities must be accorded appropriate compensation”).

Congress responded by passing the Portal-to-Portal Act which carved out certain tasks as non-compensable under the FLSA.  As a result, the FLSA no longer required that employees be paid for “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform” or “activities which are preliminary to or postliminary to said principal activity or activities.”  29 U.S.C. § 254.

In 2014, faced with the question of whether required security checks for warehouse workers were compensable under the FLSA, the U.S. Supreme Court ruled against the employees.  Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 37 (2014)  The Court explained that the workers were employed to retrieve and ship products, not undergo security checks, and the security “screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment.”  Id. at 35.  Accordingly, despite being required by the employer, the security checks were not considered compensable principal activities of the workers’ jobs.  Id. at 36-37.

Now, that doesn’t mean that pre-shift and post-shift screenings are never compensable under the law.  For example, a screening might meet the standard set by the Supreme Court in Busk if it was necessary for an employee to effectively or safely perform a job.  Further, the FLSA is not the only law governing employee wages in the United States.

The FLSA sets the floor for employee wages.  States are permitted to pass more protective wage laws, and California has done just that.  After the Portal-to-Portal Act was passed, California modified its wage law “to define the term ‘hours worked’ as meaning ‘the time during which an employee is subject to the control of an employer, … includ[ing] all the time the employee is suffered or permitted to work, whether or not required to do so.’”  Martinez v. Combs, 49 Cal. 4th 35, 60 (2010).

In a decision issued last week, the California Supreme Court ruled that an employer was required to compensate an employee for time spent going through security at the end of a shift.  Frlekin v. Apple Inc., No. S243805, 2020 WL 727813, at *11 (2020).  The Court explained that under California law, “employees are entitled to compensation for the time during which they are subject to [an employer’s] control.”  Id. at *4.  Relevant factors for determining compensability for pre- and post- shift tasks include:  (1) “whether [the] activity is required,” (2) whether the activity is on the employer’s property, (3) “the degree of the employer’s control” during the activity, (4) “whether the activity primarily benefits the employee or employer,” and (5) “whether the activity is enforced through disciplinary measures.” Id. at *10.  Based on these factors, the Court ruled that the time spent by employees “waiting for … and undergoing” security checks was clearly compensable under California law.  Id. at *11.

We applaud the decision.  Employer security should not mean wage insecurity.

If you haven’t been paid for all hours worked, you should consult with a lawyer to determine whether to bring a wage theft lawsuit. Sanford Heisler Sharp has experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.