Michael S. Kun, Member of the Firm in the Labor and Employment practice, in the firm's Los Angeles office, was quoted in LXBN, in “Supreme Court Rules Companies Don’t Have to Pay Employees for Time Spent in Security Screening,” by Zosha Millman.
Following is an excerpt:
As Michael Kun remarks in a post for Wage & Hour Defense Blog, SCOTUS found that it was in the interpretation of this that the 9th Circuit went wrong:
The Court cited an early Department of Labor opinion in interpreting the Portal-to-Portal Act in 1951, which was what the 9th Circuit cited when they ruled in favor of the workers. In the opinion, the Department drew no distinction between pre-shift searches for “items which have a direct bearing on the safety of the employees,” and post-shift searches, which were done “for the purpose of preventing theft.” It also found that neither search was compensable under the Portal-to-Portal Act.
Where the Ninth Circuit erred, according to the Court, was in focusing on whether an employer “required” a particular activity. As the Court explained, “If the test could be satisfied merely by the fact that an employer required the activity, it would sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address.”
Not unimportantly, the Court also rejected the argument that the time spent in security screenings became compensable because Integrity Staffing could have reduced the time considerably such that it was a de minimis amount: “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”
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