The California Supreme Court’s ruling Thursday that
Retail, warehouse, and shipping company workers have pressed state law wage claims in the wake of a U.S. Supreme Court ruling in 2014 that created a high bar for proving that those screenings should be compensated under federal law. A federal appeals court subsequently said that security screening time can straightforwardly be considered paid work under Arizona and Nevada law, while Kentucky law applies the same exacting test as federal law.
The question is also pending at the Pennsylvania Supreme Court and New Jersey federal court, which are poised to further clarify state law requirements for security screening time.
The potential for state law liability for unpaid security checks could fuel further worker lawsuits and prompt employers to reassess their policies for screening workers as they enter or exit the workplace.
“In light of the way case law has been developing, whether or not an employer is in a jurisdiction that treats security screening and bag checks as compensable time, employers would still be well advised to look for ways to reduce the burden on employees,” said Paul DeCamp, co-chair of management-side firm Epstein Becker & Green’s national wage and hour group.
Companies may want to consider shortening the amount of time security checks take or eliminating them all together, said DeCamp, who led the Labor Department’s Wage and Hour Division during the
The development of state law on pay for screening time demonstrates that employers should proceed with caution even if they perceive federal workplace regulators and federal law to be business friendly, said Terri Gerstein, director of the State and Local Enforcement Project at Harvard University’s Labor and Worklife Program.
Anti-theft employee screening is mostly conducted at large chain retailers rather than smaller, mom-and-pop stores, National Retail Federation spokesman Craig Shearman said. About a third of “inventory loss” in the retail industry is attributed to internal theft, he said.
Supreme Court Sets Test
In Integrity Staffing Solutions v. Busk, the Supreme Court ruled that
The high court set a difficult, but not impossible bar for showing time in a security line is compensable. For example, the U.S. Court of Appeals for the Tenth Circuit ruled earlier this month that New Mexico detention officers are entitled to pay because going through screenings is part of their job to maintain custody of inmates, search for contraband, and provide security.
After the Supreme Court ruled, workers pushed forward with wage claims against Amazon under state law, eventually making their way to multidistrict litigation proceedings in the U.S. District Court for the Western District of Kentucky. That litigation has fed a series of cases to the Sixth Circuit to consider the compensability of security screening time, with different three-judge panels reaching different conclusions.
Kentucky, Arizona, Nevada, Pennsylvania
Kentucky law applies the Busk test because it implicitly adopted the Portal-to-Portal Act’s limitations on payment for activity at the start and end of a worker’s shift, a panel of Circuit Judges
Arizona and Nevada law considers screening time to be compensable under the FLSA’s broad definition of work, according to a 2018 ruling by Circuit Judges Batchelder and
But that panel dismissed the Arizona law claims against Amazon because the workers didn’t point out a specific week that they should have been paid overtime, which was a pleading requirement. The Supreme Court last fall declined to take up a challenge to the Sixth Circuit’s decision allowing the Nevada claims to proceed.
For Pennsylvania law, the state high court should decide whether payment for security screening time is mandatory, Circuit Judges Griffin,
New Jersey, California
In New Jersey, U.S. District Judge
The California Supreme Court’s decision against Apple primarily turned on the workers being under the company’s control during security checks.
“The exit searches burden Apple’s employees by preventing them from leaving the premises with their personal belongings until they undergo an exit search—a process that can take five to 20 minutes to complete—and by compelling them to take specific movements and actions during the search,” the court said.