Supreme Court’s Ruling On Security Screening Time May Not Apply Under State Law


Following up our E-Lert of December 9, 2014, summarizing the U.S. Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, we wanted to alert you that the Supreme Court’s ruling applies only to the federal Fair Labor Standards Act, and that there may be state laws and regulations that require payment for time that is not compensable under federal law.

In Integrity Staffing, the Supreme Court held that the time that warehouse employees spent waiting for antitheft security screening before leaving work was not compensable under the Fair Labor Standards Act.  An amendment to the FLSA, the Portal-to-Portal Act, provides that activities that are preliminary or postliminary to the employee’s principal activity or activities are not compensable.  The Supreme Court found that the screening time was a noncompensable postliminary activity.  In so doing, the Supreme Court set forth the specific test employers should use to determine if an activity is compensable or a noncompensable preliminary or postliminary activity – whether it is indispensable to the performance of the employees’ principal activity, which in this case was the retrieval and packaging of products.

It is important to remember that state laws also apply, however, and may result in a different outcome.  For example, while Maryland’s wage-hour law generally follows the FLSA, Maryland has not adopted the Portal-to-Portal Act.  Further, Maryland’s regulations define the “hours of work” for which compensation must be paid as the time that the employee “is required by the employer to be on the employer’s premises, on duty, or at a prescribed workplace.”  Thus, under Maryland law, the time spent by the Integrity Staffing employees waiting for and undergoing a security screen could be found compensable.