The actual search is fairly brief, but employees spend up to 25 minutes waiting in line, and it’s this waiting period that’s at issue in Integrity Staffing Solutions v. Busk. On October 8, the Supreme Court heard oral arguments in the case.

Paul Clement for Integrity Staffing Solutions

The case involves incredibly fine details – picayune details, even. At the outset, Justice Kagan gave Clement a hypothetical about whether cashiers’ closing out a register at the end of their shift is compensable. Clement said it probably was compensable as a “wind-down” process, but distinguished the security screening as an noncompensable “postliminary” employment activity.

To Kagan, distinguishing where things happen seemed silly; for example, if a cashier counted out at her workstation, it would be compensable, but if she took the drawer to the manager’s station, it wouldn’t be. Clement actually acknowledged that the Portal to Portal Act creates some “not particularly sensible results,” but the statute does turn on where activities happen.

Curtis Gannon for United States, Amicus for Petitioner

In his time before the Court, Curtis Gannon tried to refine the definitions of preliminary and postliminary. A postliminary activity is something that happens after the regular work process has finished and as the employee is on the way out the door.

Kagan brought Gannon back to the cash register hypothetical: Isn’t counting out the cash register just as much of an antitheft mechanism as screening employees on the way out the door? No, said Gannon, who wanted to resist looking at the purpose of the security checks, because counting out the cash is (for a still-unexplained reason) a principal activity of being a cashier.

Mark Thierman, for Busk, et al.

Postliminal, preliminal, integral – whatever. Mark Thierman’s only concerned with whether something is a “principal” activity. Predictably, the Chief Justice, along with Justices Alito and Scalia, jumped on Thierman. How is not stealing a “principal” activity of a warehouse employee?

Thierman got boxed into a corner here, as he had said that a “principal activity” is anything the employee is told to do that doesn’t fit into one of the statutory exceptions. Roberts and Scalia were pretty credulous: You don’t hire an employee to punch in and punch out; you hire an employee to do substantive work. So it can’t be the case that anything an employer tells you to do is compensable.

On Thierman’s side is the “continuous workday” concept, borrowed from cases where employees have to put on protective equipment before starting work. The workday begins once the employees begin putting on protective clothing and ends when they take it off. This means that the time spent waiting in line to put on clothes isn’t counted, but the time spent waiting to take them off is.

How’d It Go?

Basically like you’d expect. Roberts, Alito, and Scalia were clearly on Clement’s side. In fact, every time Clement was asked a difficult question, Scalia swooped in to rescue him.

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