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Are Security Screenings Compensable Under the FLSA?

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

The U.S. Supreme Court has granted a petition to review whether workers at a Nevada warehouse may be entitled to compensation under the Fair Labor Standards Act for time spent going through security screenings while off the clock.

Though the case stems from the Ninth Circuit, the High Court's decision could impact the Eleventh Circuit, especially since the two circuits' rulings conflict with each other.

The Court recently denied pay for changing clothes before work. Is there a difference between pre-shift safety gear and post-shift security checks?

Portal-to-Portal Act

Central to the Court's decision will be how it interprets Section 254(a) of the Portal-to-Portal Act, which exempts certain activities from compensation under the FLSA.

The case will pivot on whether a security screening is a "work-related activity" that is "integral and indispensable" to the employees' work. If not, such activities before or after work are exempted by Section 254(a)(2).

The more "integral and indispensable" the screening is to their work, the more compensable it is. Factors considered include whether:

  • The activity is required by the employer,
  • The activity is necessary for the employee to perform his or
    her duties, and
  • The activity primarily benefits the employer.

Ninth Circuit Ruling: Busk v. Integrity Staffing Solutions

In its petition, Integrity Staffing Solution, which provides workers for warehouses that fulfill orders, argues that the Ninth Circuit erred by ruling the FLSA, as amended by the Portal-to-Portal Act, may require Integrity to pay warehouse employees for time spent passing through security screenings after their work shifts are over.

Last April, the Ninth Circuit reversed a district court's dismissal of an FLSA collective action and ruled that because post-shift security screenings are solely for the employer's benefit and may be "integral and indispensable" to the workers' "principal activities," the employees may be entitled to pay for the time spent waiting to get through security screenings, adding up to 10 to 25 minutes of uncompensated time per worker.

Eleventh Circuit Ruling: Bonilla v. Baker Concrete Construction

However, in Bonilla v. Baker Concrete Construction, the Eleventh Circuit arrived at the opposite conclusion.

The panel ruled the time spent traveling to and from the security check points was not compensable because the "plain language of section 254(a)(1) excludes 'walking, riding, or traveling' to and from" the actual place of primary activities.

But what about the actual security screenings?

After weighing the "integral and indispensable" factors listed above, the Eleventh Circuit determined the workers were not entitled to compensation for the security screenings either. This is because the screenings were required by the FAA, not for the benefit of the employer.

The Line in the Sand: Benefit to Employer?

Even though the screenings were required and necessary, they were not really for the benefit of the employer and therefore not compensable, the Eleventh Circuit ruled. By contrast, the Ninth Circuit ruled Integrity was on the hook because its screenings were for the employer's benefit.

These rulings suggest the more the screening is for the employer's benefit, the more likely the screening time is compensable.

Stay tuned to find out how the Supreme Court resolves the circuit split and clarifies when security screenings are compensable under the FLSA. We may soon have a de facto national standard.

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