Integral and Indispensable to the regular duties, Your govenment says this defines if you get paid
From a Salon interview with Catherine Ruckelshaus, general counsel and program director for the National Employment Law Project comes this case being argued today in the Supreme’s Court: Integrity Staffing Solutions, Inc. v. Busk
We tend not to hear much about Supreme Court cases until there’s an imminent ruling, much less before oral arguments have begun. So could you give me a quick overview of the case?
Sure. This is a case that’s been brought by Amazon warehouse workers who were working in a warehouse in Nevada and who at the end of their shift every day were required to go through an anti-theft screening in the warehouse that took workers as much as 25 or more minutes to get through.
So the workers brought a lawsuit against the staffing company that Amazon has [contracted] to recruit and hire the workers, it’s called Integrity Staffing [Solutions], and sued to try to get paid for the time they stood in line at the end of their shifts The [United States Court of Appeals for the Ninth Circuit] said the workers should get paid for that time, and the employer appealed and the Supreme Court has now taken the case.
The argument for the workers seems pretty intuitive to me; if you’re doing something because of your employer’s demand, you should, within reason, be compensated for your time. What’s Integrity’s argument in response?
The employer and, surprisingly, the government are saying that because the duties are not “integral and indispensable” to the regular duties that the workers are performing, the work isn’t compensable. So they’re trying to carve out of any duties that workers would perform whether or not it’s at the direction of the employer — or for the benefit of the employer — if they’re not “integral and indispensable” then you don’t have to get paid for it.
Are you getting this? Do you get this line of argument? This is a perfect, dictionary ready example of just what is wrong with our legal system. That anyone can possibly look at the employer/employee relationship and consider a line of reasoning that parses out that relationship such that the legal concept of the “common man” understanding is no longer a valid legal principle just shows how little if there is any regard for the concept of the rule of law is present today.
But worse is that We the People, or at least those who are acting as stand ins for us have decided that the proper position, the one We the People would choose if voted on is the one that states an employer can pay you or not depending on just how close to the assembly line you are for the present activity you are doing.
So, in another concept of law that says the opposite also has to be true I ask the employer: Can a person be hired if they are not willing to stand in line to exit the building?
I want to know why, during this election year, at this moment of polling I have not heard of one, not even the great Warren or Sanders or Grayson or Brown, no labor warrior Ed Schultz mentions this case as a national, economic election issue and that We the People are supporting the corporation? I googled the case and all that came up for a major news source (as in cable news) was MSNBC and a written article posted today at 7 Am.
“I think the issue is simple: When an employer tells you to do something, it’s work, and you ought to get compensated for it,” said Mark Thierman, an attorney representing Busk and Castro in both the Supreme Court case and their pending class action suit against Amazon. “Unless there’s a specific carve-out. There are some carve-outs for traveling, commuter time, and some other carve-outs for quasi-voluntary activities.”
Ya think? Now, you need to know that the Ninth Circuit court did think this in order to understand what I present next.
Of course, this is not the complete story. You see, there was a decision in 1956 regarding getting paid to put on your special work attire and equipment. In this case it was the attire worn and used by employees of a meat packing plant. It was ruled that you had to be paid because dressing as such was the first principle activity of the work day. Ok, sounds reasonable. You are in the building, you punch in and then do what is required by the employer to do the job. However, in 2005 the Supreme’s Court decided that waiting in line to get to the gear was not compensable. Here is a summary of this line of reasoning. And why did the court find such? Because in 1947, Congress passed the Portal to Portal Act (PPA) as a means to define start and stop times related to the Fair Labor Standards Act (FLSA). The PPA notes:
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform; and
(2) activities that are prior to (preliminary) or following (postliminary) said principal activities which occur either before the time on any particular workday at which an employee commences work, or subsequent to the time on any particular workday at which the employee ceases work, such principal activity or activities. 29 U.S.C. § 254(a).
Leading up to this 2005 ruling, the Ninth Circuit found: ” certain protective gear was “unique” to their job involved,…” and thus, “that if donning and doffing constituted work, it also constituted the first principal activity during the workday and that all activities undertaken thereafter, during the workday, were compensable.”
But of course, the First Circuit court found different. Oh, it agreed the clothing donning was part of the job because you know, government mandated BUT…if found that putting it all on was not the first principle work activity of the day and thus:
it concluded that walking to and from the point where such donning and doffing took place and the work location was non-compensable under the PPA as preliminary/postliminary. Waiting time associated with donning and doffing also was non-compensable, according the First Circuit.
Are you seeing where this argument is going. The First Circuit is saying you go to work, you wait in line to get to the station to put on your government mandated gear. Once in the station, you punch in and dress. Then, you punch out and walk to your station and then punch in again and begin work. Of course if this were to happen, well I’m certain you would not actually have to punch in/out. No, the all wise ones would probably have just calculated a fixed period of time to allow this walking and deduct it from you hours. I mean why make the employer purchase multiple time clocks for the sake of accuracy in work hours.
Which gets us to the Supreme’s 2005 ruling:
Justice John Paul Stevens, writing for the unanimous Court, said the issue of pay for walking time was controlled by the Court’s 1956 decision in Steiner v. Mitchell, 350 U.S. 247 (1956) as discussed above. Therefore, under Steiner, “[t]he locker rooms where the special safety gear is donned and doffed are the relevant ‘place of performance’ of the principal activity that the employee was employed to perform.” Thus, “walking from that place to another area within the plant immediately after the workday has commenced” is compensable under the FLSA.
Using the same rationale, the Supreme Court found that “the continuous workday rule mandates that time spent waiting to doff is not affected by the PPA and is instead covered by the FLSA.”
Want to guess how the Court is going to rule? I guess it’s a matter of just how many times We the People are willing to split the baby cause that is all the Court did in 2005. There was no enlightenment with this decision. In fact I would say just the opposite.
So go ahead. Keep voting for the gun rights, and the anti abortion position, and the one that sounds tuff on soothing your paranoia about immigrants and pot smoking and ebola * and terror, and the one who says they are a Democrat but sides with the money or the one who said they would get the “Card Check” bill passed but didn’t. Because it’s all about loosing your freedoms and the “right to work” if that got passed. Oh, and FREE MARKET.
Keep telling yourself that thou shall never speak the phrase: Class Warfare.
You know, in doing some law history research in my state, when the control of the health care market was being battled by 8 (yes 8) different medical societies, the then Board of Health (now DOH) charged a person for practicing medicine without a license…BECAUSE THEY PRAYED FOR THEM TO GET WELL. The RI Supremes found that doing such did not amount to practicing medicine. Can you just imagine what it would be like if they had, even a little bit by parsing it out as in this labor case? The reasoning was very clear and simple back then (1896 I believe). If you made a diagnosis, and you acted on that diagnosis to promote health or healing and you got compensated for it you were practicing medicine. What do you think the ruling and reasoning would be today by our national We the People Supreme Court?
*Did you know that about 287,000 women die each year during child birth around the world? Another 7 to 10 million suffer sever or long lasting illness.
The following is a comment made by a person of the ID: vmurphyjohnson at the Salon article. They say they are an employee in a warehouse. Read what the persons law defined, but Amazon extended time break consists of. As the person notes, it doesn’t seem to be what the law would imply. Also note how they are counting the productivity. The breaks, mandatory meetings and stretch sessions are not accounted for in the productivity count.
However if this suit is successful maybe it will help Amazon employees receive fairer treatment in regards to breaks and rate. The state requires that we have two ten-minute breaks per day. Amazon has two fifteen-minute breaks scheduled daily which sounds like generosity and compliance. Unfortunately those breaks are from “scan-to-scan.” This means that if I am picking orders on the third floor when 9:30 arrives, my break begins with the scan of my last pick. I still have to put my tote on the conveyer, return my cart and stool to their mandatory floor locations, log-out of my scanner, walk quickly (no running allowed) for the length of two football fields, return my scanner to the rack and clear Security before I can sit in the break room and shove a protein bar in my face. When I finish this restful activity I must return to the scanner rack, locate my scanner, log-in for a new pick path, walk quickly there, however far away it may be, locate a new cart and stool, walk to the conveyer to load my cart with empty order totes, locate my first pick of the new session and have it scanned by 9:45. I really don’t think this is what the Department of Labor has in mind for a “break”.
When I started last year, pickers were required to pick a minimum of 140 items per hour/1400 items per ten hour day to keep their job. Earlier this year our rate was raised to 150 items per hour/1500 per day minimum. Yet pick sessions are only a little over nine hours daily. We are actually required to pick higher than rate to cover time lost to our breaks and the twice daily “stand-up” departmental meetings and mandatory stretching sessions. Rate will probably go up again in the spring when I will have to find another job or be fired because I don’t think I can physically pick any more product in that amount of time available. I’m at a dead run all day now and lost sixty pounds in six months. My wrists are failing on me and I have terrible leg cramps nightly. These jobs should be done by robots and not by refugees from the new economy.
I still think it’s crazy that lunch is unpaid (the employer is still forcing me to do something I wouldn’t otherwise do so I should get compensated for it, up to me and I’d eat at my desk, or go without lunch, to get home earlier, the sacrifice of my time should be compensated, dang it) so this is so far past where I’m already outraged I just can’t muster up any more ire. Agree it is so insane that it is a wonder this needs to be litigated, but our country’s labor laws are so far past rational that I can’t tell up from down.
This is yet another result of the demise of union in the U.S. It makes one wonder about all the outrage that pundits at one time displayed for the so-called “crooked” union bosses. If that outrage were well placed then why is no such outrage directed at the employers that, in the absence of any union, take egregious advantage of employees by nit-picking them out of wages for time spent at work. And time spent getting ready to do the job while on the job. We’ve sunk to the selection of people who represent the lowest common denominator of the electorate, and they’re doing just what one would expect. They butter their bread on both sides and leave little for anyone else.
And if waiting is not integral or indispensable on what basis would discipline be justified if the workers just stopped waiting and left? They would not have harmed Integrity thereby considering how unimportant the activity is.
Exactly. Again, it used to be that a ruling had to make sense going in both directions. Another way to put it is, if I’m not on the clock, then what right do they have to control my leaving the premises? Or how about asking the defendant attorney along with my prior question of could a person be employed if unwilling to wait, could the employee be charged with trespassing while on the premises but not on the clock?
Seems to me that worker activities at the direction of the employer on the employer’s premises is work. Otherwise, Eric377 and I agree. Not comensated for the time? Then, the employee may just walk out. Catch them stealing something? The employer has the burden of proof to establish theft. Come on, this is total, complete hoohah. NancyO
Sweet. So as an employer I can hire ‘manufacturing workers’ to make widgets and then assign them duties to clean the bathrooms and break rooms, to take out the trash and to sweep both the factory floor and the parking lot before security will let them out the gate and then excuse not paying them because such duties are not “integral and indispensable” to their “real job” of tending a machine.
Good to know. Why outsource to some janitorial contractor when you can insource to unpaid employees? Or where would you draw the line between ‘security’ checks and ‘health and safety checks’?
I am sorry the time clock should be at the door and “off the clock” mean “off the job”. Period.
If this were ruled as such, I can just see the firms representing both labor and employer smacking their lips as the potential revenues to come because now, every little activity becomes a potential case as to what defines “integral and indispensable” to the job.
And people were lead to believe unions were creating the lack of flexibility and congestion that corps needed in the labor force to compete. You know, free market!