The United States Department of Labor these days loves to send out press releases and emails about their employee-friendly rule making. But behind the scenes, they’re still selling out to big business. This is apparent in a recent amicus brief they filed in the United States Supreme Court case of Integrity Staffing v. Busk, which involves what time employers have to pay employees for- ie, what time is “compensable” under the FLSA. The ultimate question is whether employees are entitled to overtime wages for time they are required to spend in anti-theft “security checks” before they can leave their workplace. The Department of Labor apparently believes that an employer can require employees to wait around an hour, off the clock, before they leave a warehouse, so that their employer can ensure they’re not pocketing the latest paperback edition of Fifty Shades of Grey.
As employment lawyers know, the law around this issue is complex, and involves questions of whether the function is “preliminary” or “postliminary”, to their job functions, whether it’s “integral and indispensable” to their core job functions. (Did you know there’s a line of cases on “donning and doffing” of work clothing, and whether the time spent doing that is compensable?)
Given the state of the law right now, it is arguably a close question whether compelled anti-theft security screenings are compensable. But if it is indeed a close question (and we actually don’t think that it is), why is the Department of Labor siding with big business? If the Supreme Court overrules the Ninth Circuit and finds that the time in Busk was not compensable, it will unquestionably lead to abusive and exploitative business practices where employees are required to wait interminably for someone to rifle thru their bag before they can leave their minimum wage job and go start their next minimum wage job.
At our firm’s employment and workplace justice practice, we represent a class of workers at a large retail pharmacy chain, who are required to wait, off the clock, for a manager to check their bags before they can leave. Fortunately, we have the New York Labor Law to fall back on. If that time remains free to the company, who’s the manager going to prioritize- the low wage employee, or the customer waiting for a manager to unlock his Tums from shelf? Maybe the administration’s support of big business in its amicus is simply a reverse psychological bid for the Supreme Court to do the right thing. Fat chance.
