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Working In These Times

Wednesday, Dec 10, 2014, 12:30 pm

SCOTUS Rules Workers Don’t Need To Be Paid for All Their Time Working

BY Moshe Z. Marvit

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Yesterday's Supreme Court ruling against Amazon warehouse workers means bosses can require workers to work for periods of time and simply choose not to pay them for it. (Scott Lewis / Flickr)  

Stories of the horrid conditions for workers in Amazon warehouses have been trickling out for years: The temperatures at the warehouses vary wildly, with some workers having to work in sub-zero conditions, others passing out from days where the temperature soared above 100 degrees, workers crying from not being able to keep up the brutal pace demanded, and then being threatened with termination for crying. And we can now add another indignity to the list, coming yesterday at the hands of the U.S. Supreme Court, which ruled in a 9-0 decision that it is legal for Amazon warehouse workers not to be paid for a portion of their workday.

At the end of long, taxing shifts at warehouses, Amazon requires workers to go through security screenings to ensure that no one has stolen anything from the warehouse. Because Amazon does not hire enough security guards or stagger the quitting times of the workers, these screenings add an additional 25 minutes to each employee’s shift. These workers sued, arguing that under the Fair Labor Standards Act (FLSA), the staffing company that hired them to work in Amazon warehouses was required to pay them for the time spent in these security checks.

Writing for a unanimous court in Integrity Staffing Solutions v. Busk, Justice Clarence Thomas disagreed. (Though the workers work at an Amazon warehouse, they are hired through the intermediary staffing company, Integrity Staffing Solutions.)

At issue was a provision that Congress placed in the Portal-to-Portal Act of 1947, which amended the FLSA by excluding “activities which are preliminary to or postliminary to said principal activity or activities.”  The courts have included in the definition of “principal activities” anything that is “integral and indispensable” to the principal activities. In other words, as the 9th Circuit Court of Appeals (which found in favor of the workers) stated, the test is whether the activity is necessary for the work being performed and done for the benefit of the employer.

Justice Thomas disagreed, turning to at least two dictionaries for clarity. Using the Oxford English Dictionary, Justice Thomas found that “integral” means “forming an intrinsic portion or element, as distinguished from an adjunct or appendage.” Using Webster’s New International Dictionary (2nd Ed.), Justice Thomas found that “indispensable” means “a duty that cannot be dispensed with, remitted, set aside, disregarded or neglected.” So, he concluded, an activity is a “principal activity” only when it includes one that “is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”

Using this tidy definition, Justice Thomas explains that the workers are not eligible for pay for the time they spend in the security screenings. The screenings are not the principal activity of Amazon because they were not hired to go through screenings, and they are not integral and indispensable because Amazon could have easily eliminated the screenings. The Court’s argument, then, is that because it is unnecessary for Amazon to execute long security screenings to conduct its business, it need not pay these workers for the required time they spend in these screenings.

By its own logic, the Supreme Court’s decision fails. The Court discussed other cases where workers’ preliminary time was compensable and tried to distinguish them. In one case, the Court held that employers had to pay meatpackers who had to sharpen their knives, “because dull knives would slow down production on the assembly line, affect the appearance of the meat as well as the quality of the hides, cause waste and lead to accidents.”

Amazon’s warehouses work off of extreme efficiency and knowledge of where every one of millions of items are at any given time. For Amazon, the possibility of worker theft would be even more damaging to its business than most retailers because Amazon uses a system of “chaotic storage.” Under this system, items are not shelved in categories, but rather in a seemingly random manner based on empty shelve space.

If an item cannot be found using a scanner (as a result of a theft, for example), there is no simple workaround, and Amazon’s famed efficiency would suffer. Amazon is thus concerned about theft not only because of the monetary loss of the stolen product, but also because theft slows down their warehouse efficiency—a cornerstone of their business model. So if theft is as big of a concern as the retailer has alleged (and a big enough concern to hire security guards to screen workers at the end of every shift), it would seriously impair Amazon’s efficiency at least as much as dull knives would slow down meatpacking productions.

Perhaps the Supreme Court’s decision is unsurprising. In opposition to these Amazon warehouse workers, who may occupy some of the worst jobs in America, was an alliance of some of the nation’s largest corporations and trade groups, the National League of Cities, the National Association of Counties and the United States Government.  

This alliance of business and government has now opened up the door for increased worker abuses and wage theft.  There is nothing stopping Amazon and other retailers from trying to save more money by laying off security staff that conduct screenings and make the workers wait longer. Now, after a long day of backbreaking labor, these workers may have to wait in hour-long lines for a security screening—a screening that everyone from Justice Clarence Thomas on down has agreed is inessential.

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Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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