In-House Counsel: Review Your Company's Security Check Process

By Aditi Mukherji, JD on March 11, 2014 | Last updated on March 21, 2019

Does your company compensate workers for time spent going through a security screening?

The U.S. Supreme Court recently granted a petition to review whether workers in a Nevada warehouse, which fills orders for Amazon, may be entitled to compensation under the Fair Labor Standards Act for time spent going through security screenings while off-the-clock.

The Court's ruling could set a de facto national standard on post-work security screening compensation.

U.S. Supreme Court Case on Company Security Checks

Does your company require workers to go through a extensive daily security search process -- perhaps involving metal detectors and a manual search of employees' bags or personal items -- after a shift is over, without pay?

If so, your screening practice might be inviting legal trouble.

In Integrity Staffing Solutions v. Busk, the U.S. Supreme Court will answer an important wage and hour question: Should Amazon warehouse workers be paid for time spent, after their shift, waiting in line for security checks?

There is currently a circuit split on the issue. The Ninth Circuit ruled in favor of the Amazon workers and held the FLSA, as amended by the Portal-to-Portal Act, may require the employer to pay warehouse employees for time spent passing through security screenings after their work shifts are over. But the Ninth Circuit case, which was granted cert. by the Supreme Court, is in conflict with cases from the Second Circuit and Eleventh Circuit.

To be compensable, the security screening must be considered a "work activity" that is "integral and indispensable" to the employees' work. Generally, the more necessary it is for the work and the more it's for the benefit of the employer, the more likely it calls for compensation.

The Court recently denied pay for changing clothes before work. We'll have to wait and see whether there's a difference between pre-shift safety gear and post-shift security checks.

Review Your Screening Protocol

As the U.S. Supreme Court reviews the case and attempts to resolve the circuit split, the lesson here is that employers can potentially run afoul of state and federal minimum wage and overtime laws when security searches -- conducted at the company's request and solely for the company's benefit -- are performed without compensation.

Considering that other business giants like Apple and Forever 21 have faced similar lawsuits over unpaid employee bag searches, now might be a good time to review your bag search protocols.

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