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.
NancyO
I had posted on this case in October. http://angrybearblog.strategydemo.com/2014/10/intergral-and-indispnesable-to-the-regular-duties-your-govenment-says-this-defines-if-you-get-paid.html
I was hoping they would do the proper thing, but to hope is to not acknowledge the reality of the times.
To quote myself from the post considering this recent Cormnibus crap.
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.
Related to labor in this Cromnibus crap is this: Under current rules, truck drivers can work as many as 14 hours a day, including 11 hours of driving. If they average 70 hours in a week, they must rest 34 hours, including two consecutive nights from 1 a.m. to 5 a.m. The regulations curtailed practices allowing the 82 hour work week, according to the Transportation Department.
The American Trucking Ass notes: A survey of 40,000 drivers’ logs before the rules took effect last year showed an average of 52 hours driven per week, with only 2 percent having worked more than 61 hours, said Sean McNally, a spokesman for the association. It’s very difficult to get to the 82 hours safety groups are talking about in their “hysterical claims,” McNally said.
My question then: Why worry about the rule hindrance if only 2% of the truckers are above 61 hours?
Daniel–Good question. Sounds a lot like whining, doesn’t it? NancyO
So if employees aren’t paid and can’t leave, does that make them hostages?
The Supreme Court just wants to make sure that employers don’t suffer. They don’t care about employees.
“That overtime pay went straight into the economies of the local communities where hourly employees worked. Result–everyone benefited.”
I agree but the richest among us wanted more money. They were getting a small slice of a larger pie but they wanted more. It is how they keep score in the game of life.
Now they are getting a larger slice of a smaller pie, but they don’t care.
Only their score in the game is important.
J–“So if employees aren’t paid and can’t leave, does that make them hostages?”
Good question. Suppose some of them decided to sell snacks and soft drinks while waiting to be checked out. If they aren’t actually working, then the employer should have nothing to say about this or other activities they could conduct. Like, maybe, union organizing since Justice Thomas seems to encourage this approach. Or they could make political speeches and invite the media to observe the check out process. The Court is done with this case so the workers are free to work out the kinks in the decision, aren’t they? Why do I think NOT….NancyO
an aspect of this that may not be as obvious to those who don’t believe we are ruled by reptile hearted creatures from outer space as it is to me
is that the court has outsources what used to be known quaintly as violations of the Constitution, not to say human rights: the government can’t arrest you without probable cause or search you without a warrant (and probable cause), but the Court has now declared that a corporation can.
if the workers …. all of us… were to go on strike over this we might (might) have a chance to slow down the reintroduction of serfdom,,, which is apparently okay with ALL of the Supremes as long as it is done in the name of private enterprise and productivity…. which was the way it used to be in the good old days.
Nancy O
“If they aren’t actually working, then the employer should have nothing to say about this or other activities they could conduct.”
And thus is the conflation of the decision. The employer can have nothing to say except that the off the clock employee is still on the employers property. So, how would Solomon split this baby?
DanB–Solomon’s out, so I guess that the employees must generally obey the law, refrain from damaging the employer’s property, and keep the peace. So, if the employees’ actions are otherwise lawful, I can’t see how the EE’s get in trouble by selling snacks, or otherwise.
Thing is, EE’s could get into a fight or be injured as the result of the employer’s actions. Say a forklift’s brakes fail and several waiting employees are struck and injured. Are they eligible for worker’s comp? What if the employer fires them rather than pay WC? Can they recover their lost wages and medical expenses under a torts theory?
Stranger things have happened and undoubtedly will happen again. This is not a simple case, Supremes! NancyO
Becker
I don’t understand the Soloman angle. Soloman wasn’t going to split that baby. He just thought of a clever way to find the true mother.
I don’t see anything to be split in the present case. The employees are in fact being held hostage. The supremes seem to think that false arrest is okay as long as it’s done by a bona fide corporation and not the bad old government.
But I don’t see any workers rising up in solidarity. Hell, I don’t even hear a squeak from the True Left.
Your training on “suffer or permit” could easily have been correct, and still would be, if you were in a state, such as California, that has that standard written into state law. The Supreme Court decision only construes federal law, not state overtime laws.
Naw, it’s not false arrest or a violation of the 13th Amendment. They’re free to leave but they have to quit to do it.
Jack D
That’s the hell of it. That’s why the Supremes are dancing. There is no violation of the Constitution if we outsource it.
See, it solves the “partisan” problem. Now we can get on with seriously governing the country.
Kind of like they solved the retirement crisis: “easy: just take away their pensions.” I tell you these guys are legal geniuses.
He just thought of a clever way to find the true mother.
Exactly Coberly. So, what needs to be split is the freedom of the employee to do as they wish while standing in line on private property, though not on the time clock so that they can leave the premises. Which is to say the truth and reality of the present decision needs to be found out.
There is no way to split this baby.
Becker
what this employee wishes to do is go home. it’s been a long day and there is no one watching the kids.
this is just the last best example of the fact that our betters think of us as dirt.
Widmerpool
i guess i don’t follow your comment. it appears to have appeared here much later than the time stamp indicates.
whatever the state law on overtime may be, the Constitution is supposed to prohibit slavery…. which is what forced, unpaid overtime amounts to.
the court can arrive at whatever decision it wants by choosing what law to apply to the case.
on the other hand, if we had workers willing to stand up for their rights we would all go on strike to protest this decision, or at least refuse to shop at Amazon (which i assume is the place of employment. and which i assume falls under “interstate commerce.”)
Widmerpool–I worked in a federal agency under the FLRA, the law giving federal employees the right to unionize. So, everything they taught me was federal sector labor law. In any event, federal labor law trumps state law or should in such cases. Which is why the Supremes’ decision seems so wrong. It’s also quite a departure from rulings of the NLRB on wage theft and other labor law violations directed at Walmart, to mention only one corporate employer.
See http://www.reuters.com/article/2014/12/16/us-walmart-lawsuit-idUSKBN0JU1XJ20141216 for a state supreme court’s ruling on wage theft and other violations Walmart inflicted on a large number of hourly warehouse employees. It seems the lower courts don’t agree with the Supremes. These cases are popping up all over the country. It will be interesting to see if Congress finally notices what’s going on. NancyO