Supreme Court Agrees to Hear Security Line Compensation Appeal

Supreme Court Agrees to Hear Security Line Compensation Appeal

 WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court this morning granted a petition for writ of certiorari in a lawsuit filed by warehouse employees seeking compensation for the time they spend at the end of each shift passing through a security check (Integrity Staffing Solutions, Inc. v. Jesse Busk, et al., No. 13-433, U.S. Sup.; See May 2013, Page 8).

Labor Law Violations

Jesse Busk and Laurie Castro worked for Integrity Staffing Solutions Inc., which provides warehouse space and staffing to clients such as  Busk and Castro worked as hourly employees at warehouses in Las Vegas and Fernely, Nev., respectively, filling orders placed by customers.

In 2010, Busk and Castro filed a class complaint against Integrity in the U.S. District Court for the District of Nevada, alleging violations of the Fair Labor Standards Act (FLSA) and Nevada labor laws.  Busk and Castro alleged that Integrity violated the federal and state labor laws by requiring them to pass through a security clearance at the end of each shift, for which they were not compensated.  Employees waited up to 25 minutes to be searched; removed their wallets, keys and belts; and passed through metal detectors.

The plaintiffs also sought compensation under federal and state law for their 30-minute unpaid lunch periods, alleging they spent up to 10 minutes of the time “walking to and from the cafeteria and/or undergoing security clearances.”

Dismissal Granted

The District Court granted Integrity’s motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).  Senior Judge Roger L. Hunt opined that time spent clearing security was not compensable under the FLSA.  He also opined that the plaintiffs’ allegations about shortened meal breaks fail because they did not allege that they performed “any duty related to their job as warehouse workers” during their lunch breaks.

Judge Hunt further ruled that the state law claims must be dismissed due to “conflicting” class certification mechanisms.  In addition, the judge found that the claims must be dismissed based on the merits.  The plaintiffs appealed.

Security Check

In its April 12 opinion, the Ninth Circuit U.S. Court of Appeals reversed in part.  The appellate panel opined that the plaintiffs may proceed with their claim under FLSA for passing through security clearances at the end of the day, as well as their parallel state law claim.

“Here, Busk and Castro have alleged that Integrity requires the security screenings, which must be conducted at work.  They also allege that the screenings are intended to prevent employee theft — a plausible allegation since the employees apparently pass through the clearances only on their way out of work, not when they enter.  As alleged, the security clearances are necessary to employees’ primary work as warehouse employees and done for Integrity’s benefit.  Assuming, as we must, that these allegations are true, the plaintiffs have stated a plausible claim for relief,” Judge Sidney R. Thomas wrote for the panel.

However, the appellate judges agreed with the District Court that the plaintiffs failed to state a claim under the FLSA for their shortened lunch periods.  “Here, Busk and Castro alleged they were not ‘completely relieved from duty’ because by placing the time clocks far from the lunchroom, Integrity forced upon them the ‘duty to walk to the lunch room in order to eat lunch.’  But the district court correctly held that walking to the lunchroom is not a work duty.  Walking to the lunchroom is not necessary to the plaintiffs’ principal work as warehouse employees.  Moreover, though the Portal-To-Portal Act does not clearly preclude compensation for walking to the lunchroom, as it only expressly applies to walking before the workday starts and after it ends, it would be incongruous to preclude compensation for walking into work on the employer’s premises, but require it for walking to the lunchroom,” Judge Thomas wrote.

Judges Jerome Farris and N. Randy Smith joined in the opinion.

Integrity Staffing Solutions filed its petition for writ of certiorari on Oct. 3.


Paul D. Clement of Bancroft in Washington represents Integrity Staffing Solutions.

Mark R. Thierman of Thierman Law Firm in Reno, Nev., represents the employees.

James C. Ho of Gibson, Dunn & Crutcher in Dallas filed an amicus brief on behalf of International Municipal Lawyers Association, National League of Cities and National Public Employer Labor Relations Association.  Ronald E. Meisburg of Proskauer Rose in Washington filed an amicus brief on behalf of the Retail Litigation Center Inc., Chamber of Commerce of the United States of America, Society for Human Resource Management and National Association of Manufacturers.

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