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Why the Supreme Court Should Rule that Workers Should be Paid

By Jon LevitanPublished October 21, 2014

Amazon warehouse workers are suing the temp agency that employs them because they are subject to unpaid time spent waiting for security checks, and here is why the Supreme Court should rule in favor of the workers.
By Jon Levitan, 10/21/2014

On Wednesday, October 8th, the Supreme Court heard arguments in a civil suit brought by Jesse Buck against his employer, Integrated Staffing Solutions, a temp agency that employs workers for an Amazon warehouse. Mr. Buck sued because he and his fellow workers are forced to wait in lines upwards of 25 minutes of unpaid time, after a 12 hour shift, to submit to a security check to assure that workers were not stealing goods, and he argues that they should be paid. The employer, naturally, is arguing that it should not be paying the workers for this time.

The Statute that governs this case is the Portal to Portal Act of 1947, which states that, among other things, "Time spent on incidental activities before or after the employee's principal activities"  is exempt from compensation. The key issue in this case is whether the time spent waiting in the security line is "incidental", or a part of the workers' "principal activities".

As is often the case in Labor Law, there are compelling arguments on both sides. First, the employer argues that the screenings were not necessary and simply beneficial to the employer, so they must be incidental activities. Their attorney said: "I think you can perfectly well run a warehouse facility without egress security,". Mr. Buck, on the other hand, argued simply that, since the employer requires the check of all the employees and takes up significant time, it cannot be considered incidental. Though both arguments are legally plausible, I will present an argument that the Court should rule in favor of the Mr. Buck.

Firstly, while the employer's argument that the time spent waiting is not necessary does make sense in the context of the law, it does not really stand up to common sense. If the employer thinks it can run its business "perfectly well" without the security, why does it continue the practice and require that every single employee is submitted to a security check? The security program surely costs significant resources, so if the argument that the shop could be run easily without security is to believed, then those resources should surely be deployed elsewhere.

A far more important reason that the Supreme Court should disincentivize this practice by requiring employers to keep workers on the clock for time spent waiting is that it injures the public welfare. Mr. Buck worked an exhausting 12 hour shift, "we would sometimes walk 20 miles a night — and I was eager to go home and get some sleep". Simply put, making an worker who spent the last half-day in an exhausting job endure a 25 minute wait to ensure that they did not steal anything is patronizing and cruel. The negative effects of workers losing leisure and rest time have recently been put into the spotlight, with The New York Times publishing a story eulogizing Maria Fernandes. Ms. Fernandes was in between shifts at two of her three jobs when took a nap in her car, trying to get some needed sleep just the way Mr. Buck is, and died because the gas cap was open and her car filled with fumes. Reducing the strain on low-wage workers like Fernandes and Buck is good for public policy, and the Supreme Court must promote this goal.

Finally, I would like to invoke a historical anecdote. The practice of forcing workers to stay in the shop to undergo a security check is nothing new. In fact, it was in practice in 1911, when the owners of the Triangle Shirtwaist Factory locked its doors to prevent workers from stealing. One day a fire broke out, and workers were unable to open the doors of the factory. The fire caused 146 deaths, and while it is unclear whether having the door open would have saved any lives, the fact of the matter is that the locked exit could not have helped the panicking workers.

My arguments are likely to be in vain, as both the Obama administration and the NLRB have supported the employer, and the Supreme Court is likely to do the same. It remains imperative, however, that even in an anti-labor environment, that the rights of workers are protected by the Federal Government.