I have lectured and presented extensively on what does and does not constitute working time, in the context of preliminary and postliminary activities. The key in such determinations is whether the activity at issue is so connected with the main/major job activity as to make the activity at issue compensable. The US Supreme Court has added context (or, shall I say, clarification) to this analysis by holding that time spent going through security screenings is not compensable time. The case is entitled Integrity Staffing Solutions Inc. v. Busk et al. and was a 9-0 vote in the Court.
I have held off commenting on this momentous case, sifting through the Opinion and collecting my thoughts. The Court analyzed whether the main job activity could not be performed if this postliminary activity was not engaged in and concluded it yet could be done. Although hailed by (mostly management side) commentators as a novel and ground breaking decision, I assert that it is not such a watershed development.
I say this because I analogize it to waiting on line to punch in or out or waiting in line for a paycheck. These are specific activities enumerated in the Portal to Portal Act as being non-compensable activities. In fact, the defendant in this case argued exactly that. The employees argued that the end-of-shift anti-theft search was integral to the primary duty of the workers, i.e. that they do not steal/take Amazon products.
Not so, said the Court. The main function of the workers was to do their jobs. Their “job” was not the taking or potential taking of the products they were supposed to be working with. The Court also rejected the employees’ contention (which was far-fetched, in my view) that they could be compelled to mow the warehouse lawn or wash their supervisor’s car, before or after their shifts, without pay. The Court noted that the employer did not employ workers to pass through security checks, but rather to pick orders and pack them for shipment to Amazon customers.
If employees engage in preliminary activities, it is incumbent upon the employer to analyze (objectively) whether the workers cannot perform their “real” job without performing those pre or post shift activities. If they cannot, the time is working time and must be paid and if those minutes/hours bring the employee(s) over forty hours, then overtime must be paid.