By Kyung M. Song, The Seattle Times
WASHINGTON — The federal Fair Labor Standards Act was enacted to ensure “a fair day’s pay for a fair day’s work.”
But when does the workday end for Amazon.com warehouse workers forced to wait nearly a half-hour after quitting time to be checked for any pilfered merchandise?
That was the issue before the U.S. Supreme Court on Wednesday in a case filed by two former workers at Amazon warehouses in Nevada that could redefine what constitutes paid labor.
The legal question presented to the sometimes skeptical justices was whether waiting to clear security screening was an “integral and indispensable” part of the job, thus subject to pay. A ruling in the workers’ favor could sharply limit activities employers can require just before or after work off the clock, such as closing out cash registers at casinos and stores.
The original complaint was filed in 2010 against Integrity Staffing Solutions, which provides contract workers to Seattle-based Amazon and other vendors.
To prevail, the attorneys for workers Jesse Busk and Laurie Castro will have to sway the court’s conservative justices, who repeatedly honed in on whether time spent waiting to exit a building amounted to “principal” work.
Chief Justice John Roberts and Justice Samuel Alito in particular pushed back against arguments by Mark Thierman, the workers’ attorney, that the security searches were Amazon’s way of safeguarding its inventory and were mandated for the company’s benefit. That, Thierman said, makes the wait centrally linked to the job.
Roberts rejected that reasoning.
“No one’s principal activity is going through security screening,” he said.
Paul Clement, a former U.S. Solicitor General and attorney for Integrity, told the justices that passing through metal detectors was classic before- or after-shift activity that has been established through case law as exempt from pay.
Two circuit courts previously ruled against New York nuclear-plant workers and Miami airport-construction workers who had sought pay for time spent reaching their work sites, which included passing through radiation detectors or taking a shuttle bus from the tarmac.
Clement argued the Amazon case was similarly about coming and going to actual work.
“Work of consequence is not checking in and checking out,” Clement said. “Nobody gets paid to go through security all day.”
The federal government, which has scores of employees who must go through physical security checks regularly, sided with Integrity. Curtis Gannon, assistant to the U.S. Solicitor General, appeared before the justices for 10 minutes.
At the time of the original complaint in 2010, the workers claimed it took 25 minutes a day — adding up to an extra day of work each month — to leave the Amazon warehouses in a single-file line alongside hundreds of other workers.
During the holiday season, staffing in the mammoth warehouses can swell to several thousand people.
Since then, according to both Amazon and Thierman, wait times for screening have been reduced to just several minutes.
The original lawsuit was tossed out by the U.S. District Court in Nevada. But the 9th U.S. Circuit Court of Appeals reversed it, saying the merchandise checks were done for Integrity’s benefit and were a necessary part of the workers’ duties.
Justice Ruth Bader Ginsburg questioned Clement whether it was irrelevant that because of a shortage of security checkers and lack of staggered shifts, “what could be a five-minute process turns out to be 25 minutes, 25 minutes of workers’ time.”
Clement replied “the pure length of time of something” does not change it to an activity subject to compensation under labor laws.F
Justice Elena Kagan forcefully countered Clement’s argument that security checks were nothing more than simple “egress.” Clement distinguished Amazon from another case where a circuit court ruled that butchers who had to sharpen their knives before starting work were engaged in indispensable activity and thus should be paid.
Kagan said the security measures were in fact an integral part of Amazon’s operations.
“I mean, what makes it Amazon? It’s a system of inventory control that betters everybody else in the business,” she said. “And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is.”
Thierman said the workers’ time sacrifice for Amazon’s anti-theft policy was not trivial.”It’s work because you’re told to do it,” he said.
Speaking to reporters on court steps after the arguments, Thierman acknowledged the original complaint would not apply to Amazon today because the company has shortened screening time to minimal minutes that would not trigger questions of overtime pay.
Still, Thierman said a legal ruling was needed to keep Amazon and other employers in check.
Otherwise, “they’d go back to their old ways,” he said. “Why wouldn’t they?”
The Supreme Court’s new term began this week. A decision on the case could come any time before the term ends around June.
AFP Photo/Emmanuel Dunand