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

Moshe Z. Marvit December 10, 2014

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.

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.

Limited Time:

SUBSCRIBE TO IN THESE TIMES MAGAZINE FOR JUST $1 A MONTH