The Wall Street Journal editorial board is criticizing a new Supreme Court case by downplaying serious allegations in the case that Amazon.com engaged in illegal employment activities and complaining about class action lawsuits.
On October 8, the Supreme Court heard oral arguments in Integrity Staffing Solutions v. Busk, a case involving a class action lawsuit in which temporary contractors who worked in Amazon warehouses are accusing the retailer of wage theft. The lead plaintiff in the case, Jesse Busk, represents warehouse staffers who argue that they are owed back pay for the time they spent in lines for security checks after they had clocked out. Busk says he often waited upward of 25 minutes at the end of his shift to go through security, where guards checked each employee for stolen merchandise. Because the security screenings are mandated by company policy, Busk and the rest of the class argue they should be compensated for the time they spent waiting to be screened.
Although the court recently held that the time employees spend putting on and taking off protective gear is not compensable, the Busk case is far from a slam-dunk. But as far as the Journal editorial board is concerned, “this should be an easy call for the Justices.” In an October 7 editorial, the Journal minimized how much time workers were required to wait in security lines, complained that suits to recover back wages for this unpaid time “benefit lawyers far more than workers,” and misrepresented the holding in other wage theft cases to conclude that "[t]ime in security lines doesn't qualify" for compensation:
Standing in line might feel like work, but it isn't. Under the 1947 Portal to Portal Act, Congress specifically wrote rules to prevent employees from abusing an amorphous definition of work in the Fair Labor Standards Act (FLSA) to claim they were entitled to be paid for a wide range of activities on work premises. Congress said employers weren't expected to pay employees for “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform.”
That understanding has been upheld by both the Second and Eleventh Circuit Courts of Appeal. Workers must be paid only for activities that are “integral and indispensable” to their core job responsibilities. Time in security lines doesn't qualify.
This kind of FLSA litigation has been booming, especially as securities class-actions have become harder for the trial bar to win. From March 2011 to March 2012, 7,064 FLSA actions were filed in federal court, up from 2,035 a decade earlier.
If the Ninth Circuit's reasoning is upheld, it would encourage a wave of copycat suits and mean countless paydays for the trial bar. A similar lawsuit is pending against Apple, which checks employee bags for wayward iPhones. While the security delays are only minutes, a class-action suit would cost millions in settlements that would benefit lawyers far more than workers.
The 9th Circuit applied a two-part test in in its opinion to determine whether an on-the-job activity is “integral and indispensable” -- it must be both “necessary to the principal work performed” and “done for the benefit of the employer.” In Amazon's case, the employees are arguing that the security checks meet this test, because the checks arise from their work in the warehouse, and uncovering theft is solely for the company's benefit.
The other cases cited by the Journal are distinguishable from Busk, although the editorial board doesn't bother to say so. The 2nd Circuit case involved security checks at a nuclear power plant, and the court ultimately held that the wait was not compensable because “security measures at entry are required ... for everyone entering the plant,” and not just employees. The 11th Circuit ruling is also different from the Amazon case. In that decision, the court held that subcontractors working at an airport were not owed back wages for time spent going through airport security, because the Federal Aviation Administration required the checks and they weren't performed to benefit the employer. The Journal ignores these differences to claim that the Busk case is an easy one, but the plaintiffs are asking for the court to draw a distinction between the need for general security measures that protect everyone (like the ones at issue in the 2nd and 11th Circuits) and the mandatory anti-theft screenings that benefit only Amazon.
But the Journal rarely passes up an opportunity to rail against class action lawsuits, regardless of the harm the plaintiffs in the cases have suffered. Here, the editorial board dismisses the amount of time warehouse employees spend in the security check lines as “only minutes,” despite the fact that numerous lawsuits have alleged that the wait time is much longer. Not only that, but these security checks often occur after long shifts -- according to Busk, he worked 12-hour days and walked the equivalent of 15 or 20 miles every day in the warehouse to fill orders.
And as Bloomberg reported, the outcome of this case has implications beyond just the Amazon warehouse:
The Supreme Court case is likely to have an impact on several pending lawsuits. Apple Inc., CVS Health Corp., J.C. Penney Co., TJX Cos. and Ross Stores Inc. are all battling court claims involving searches at break times or the end of shifts at distribution centers or stores.
“It's a much bigger deal than just about searches,” said Eric Schnapper, a law professor at the University of Washington. “If the court adopts the company's view, it would allow employers to require employees do a variety of tasks once their shift ends.”
“This is about dollars and cents, and as long as it's someone else's dollars and cents, Amazon doesn't care,” said Mark Thierman, Busk's attorney in the suit.
Lawsuits like Busk's are “one of the few ways,” according to Bloomberg, for employees to recover back wages for uncompensated work.