Paid or not? What is part of your job?

by Nancy O

You’d think that the Supreme Court would have better things to do than write decisions constituting rehashes of old law. But, nooo! In its recent decision in Integrity Staffing Solutions v. Busk, 13-433, a decision released this week, the Court sagely decided that waiting in line is not compensable work related activity.
You may spend half an hour at the end of a 12 hour shift waiting to shuffle through a metal detector, but it’s not work. And, your employer doesn’t owe you a nickle for your time. And, no you don’t get to leave if you don’t want to wait. And, no you can’t slip out the back because you’re in a warehouse the size of 7 football fields. And, yes, you gotta do it because your boss tells you to. But, no pay for you even though your employer’s security process is a regular part of your daily activities.

This case is a classic “portal to portal” case of the type litigated and relitigated in the 30’s and 40’s after passage of the Fair Labor Standards Act. For decades, the FLSA helped to improve the compensation and working conditions of millions of American workers by insuring fair compensation for longer hours of work required by some employers on an irregular basis. That overtime pay went straight into the economies of the local communities where hourly employees worked. Result–everyone benefited.

But during the past 30 or so years, employers across the country have decided the FLSA is an unnecessary inconvenience in extracting the maximum labor from minimally paid employees. Wage theft, including the failure to pay overtime when due, is now as common as identity theft, and that’s saying a lot. Thus, this suit.

The Justices unanimously held that this case, despite its compelling facts, was long settled law under the portal-to-portal doctrine. So, why did they take it to begin with? Was it just to give Justice Thomas the opportunity to observe that these employees need a union? Yes, he actually wrote that this kind of dispute should be settled at the bargaining table. Just wonderin’, but did it escape his attention that these temporary employees don’t have a union and probably never will?

I spent a lot of time arguing the FLSA with union reps in my long supervisory career. But, it never occurred to me that I was supposed to keep employees in the shop without paying them for their time! In fact, we were taught in Supervisor School that if you “suffer or permit” people to remain at their work stations, you pay them. Making them line up and wait to be searched is “suffering and permitting”, alright. Although, the suffering was all on the employees’ side.