You just know where this one is going:
After his 12-hour shifts at an Amazon warehouse in Las Vegas, Jesse Busk says, he and 200 other workers typically waited in line for 25 minutes to undergo a security check to see whether they had stolen any goods.
Upset that the temp agency that employed him refused to pay workers for that time, Mr. Busk sued. On Wednesday, the Supreme Court will hear oral arguments about this hotly contested issue.
The nation’s retailers are paying close attention because such security checks are common. The Supreme Court is to determine whether the check and related waiting time were part of Mr. Busk’s regular, compensable workday or, as the temp agency argues, were time after his workday and not compensable.
Poor Mr. Busk. He’s got no chance. For one thing, his lawyer shows signs of some sort of mental defect:
Mr. Busk’s lawyer, Mark R. Thierman, disagreed [with the employer’s position]. “The antitheft check is integral and indispensable because the company said you have to do it,” he said. “If the company tells you to do it, it doesn’t matter whether it’s related to what else you do on the job.”
Mr. Thierman said that if an employer ordered a worker to do something, that work should be compensable, whether or not it was integral and indispensable to primary work activities. He cited a 2005 Supreme Court case, IBP v. Alvarez, which said that if a company required its employees to arrive at a particular time to begin waiting, even if there was no work to be done at that time, the waiting time would be compensable and not just preliminary.
“It’s by definition a principal activity because you were told to do it,” Mr. Thierman said.
He argued that under Integrity Staffing’s logic, if the company ordered an employee to mow the lawn outside the Amazon warehouse for 25 minutes after his 12-hour shift, the company would not have to pay for that work because it would not be considered “integral and indispensable” to his principal activity of tracking down goods ordered online.
I mean, what's with this guy? Does he think we're living in the Age of Reason or something? That sort of clear cut reasoning hasn't had any place before our Supreme Court since long before Bush v. Gore.
You might wonder where the Justice Department is on this issue and whether it has made the mistake of following Mr. Thierman where logic and common sense led the poor deluded guy. Well, fear not:
The Obama administration has filed a brief backing Integrity Staffing. Signed by lawyers from the Labor and Justice Departments, the administration’s brief said the Ninth Circuit’s focus on whether antitheft checks were done for the employer’s benefit was “an insufficient proxy for determining” whether they were integral and indispensable to a principal activity.
The administration argued that the security check at the Amazon warehouse was little different from a security check at an airport that construction workers must go through on their way to a project at the airport. The 11th Circuit has ruled that the time spent in that airport security check was not compensable and not integral to the job, on the grounds that it was ordered by the Federal Aviation Administration, not the employer, and was not of particular benefit to the employer.
Now, I'm just a country lawyer, pretty much on an intellectual par with poor Thierman. My response to the Justice Department would be that no employer pays their employees for the time it takes to get to and from work, and that in the case of the construction workers, getting through airport security was analogous to getting through highway tolls. It's not an employer's fault if you have to leave for work earlier, or get home later, because of traffic delays. It is the employer's fault if they insist that you can't end your workday until they do a strip search. But as I say, like Thierman I'm somewhat simple-minded.
Of course, it's always possible that the Justice Department has a hidden agenda here, and they have, in fact, bought into Mr. Thierman's weird premise that an employer ought to pay its employees for the things it requires them to do. Given our present Supreme Court, the Justice Department may have concluded that the best way to help the workers was to oppose them, on the grounds that there are five justices who will reflexively oppose whatever Obama supports. So, who knows. The court may surprise us. But don't hold your breath.
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