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Canadian Labour Reporter



U.S. Supreme Court rules on security checks



Employers do not have to pay for time spent in screenings


IN DECEMBER, the Supreme Court of the United States ruled companies do not have to pay employees for time spent undergoing security checks at the end of a shift.

The unanimous ruling came in a case involving one of Amazon.com's warehousing contractors. In a 9-0 vote, the court found employees of Nevada-based Integrity Staffing Solutions cannot claim compensation for time spent in security screenings.

Former employees sued Integrity Staffing in 2010 for back wages and overtime pay as compensation for time spent waiting to undergo and undergoing security checks, with Amazon never directly involved in the case.
The workers also alleged the company could have reduced time spent in security checks by adding screeners or staggering shift terminations.

Aimed at preventing theft, the security checks take up to 30 minutes each day, according to employees at the facility where Amazon merchandise is processed and shipped. During screenings, employees remove items—including wallets, keys and belts—from their person and pass through metal detectors.

The workers' claims were “simply not true,” said Amazon spokesperson Kelly Cheeseman, according to Reuters, and the company's screening process is designed to take 90 seconds per employee.

The District Court dismissed the complaint, citing a failure to state a claim and holding that screenings were postliminary activities and not compensable. The 9th U.S. Circuit Court of Appeals reversed the decision, ruling postliminary activities are compensable when they are integral to an employee's principal activities and citing the fact that the security screenings were performed for the employer's benefit.

Justice Clarence Thomas, writing on behalf of the U.S. Supreme Court, found the screening process is not a “principal activity” of the employees' jobs under the Fair Labor Standards Act.

The time spent undergoing security checks is not subject to compensation, Thomas said, because for workers to be paid the activity in question must be “an intrinsic element” of their job. The ruling cited the Portal-to-Portal Act, which exempts U.S. employers from compensating workers for travel to and from work as well as for activities that are considered preliminary or postliminary to the employee's actual principal activities.

“The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,” the court found. “Integrity Staffing could have eliminated the screenings altogether without impairing the employees' ability to complete their work.”

Implications for Canada

Employees not represented by unions in Canada could face the same pay restrictions, according to Lewis Gottheil, director of Unifor's legal department. Unionized employees can rely on their representatives to determine issues of compensation and hours of work, he said, while those without collective agreements are governed by the Employment Standards Act.

“In a non-union environment, an employer is able to set terms and conditions of employment more unilaterally, if you will,” Gottheil said. “I would say that this time should be paid time because it's time in which the person, as an employee, is being directed by the employer to perform or to undergo certain activities or certain duties, all within the employment context. It's, in a sense, performance of work or duties associated with performance of work.”

The U.S. Supreme Court took a more expansive view of employer rights than is common in Canada, he said, and an activity should not need to be considered a “principal activity” in order to be compensable.

“In my view, it doesn't have to be a principal activity as long as it is associated in a relevant way to the activities of the employer at the direction of the employer,” Gottheil said. “The performance of work is not just—I don't want to be too simplistic—but the performance of work and work time is more than just fastening a bolt to a piece of metal. It's performing services and doing things at the direction of the employer within the organizational integrity of the employer.”
Employers in Canada must also take into account issues of reasonable grounds before enacting security screenings, Gottheil said.

“The only way an employer can even attempt to exercise a kind of security check is on reasonable grounds where there is a demonstrated problem of theft. The idea that you could have a broadly based security screening—which is, to me, another term for a search—that's unacceptable.”

Unifor would fight that type of broad-based security search both legally and through collective bargaining, he said.
Chris Roberts, director of social and economic policy for the Canadian Labour Congress, agreed collective bargaining is one of the most effective methods for determining fair pay for all employment activities.

However, the issue of security screening goes beyond the sphere of collective bargaining and union participation, he said, and the conflict between Integrity Staffing and its former employees should also be considered from an employment standards perspective.
“One of the reasons this is an issue in the States is because employers know they can force their employees to submit to this,” Roberts said. “I don't think it's accidental that these are non-union contexts in which workers are forced, after a full day at work, to spend a half-hour at work unable to go home in order to pass through an elaborate screening process. I think in a unionized environment that would very quickly be subject to contention and obviously employees would have another avenue besides having to go to court.”

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