Years Long Fight Over Time Spent Going Through Security Clearance Checks After Work Continues and Gives Employees First Glimmer of Hope In Almost 8 Years of Litigation

Amazon.com (“Amazon) and Integrity Staffing Solutions, Inc. (“Integrity”) continue their years’ long court battle over whether time spent by employees going through security clearance checks is work time and therefore compensable.  Integrity provides warehouse labor services to businesses throughout the United States.  Integrity provides thousands of hourly employees to work at Amazon warehouses in Arizona and Nevada. 

In 2010, Jesse Busk, an Integrity employee, filed a putative class action against Integrity alleging violations of federal law and Nevada state law.  That case was litigated for years and eventually made it to the Supreme Court.  Amazon and Integrity won a favorable Supreme Court decision under the Federal Labor Standards Act (“FLSA”), in December 2014.  Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 518 (2014).  The decision in that case hinged on the FLSA, as amended by the Portal-to-Portal Act.  Specifically, the Supreme Court held that time spent going through security clearance check points is not compensable time because it is neither the principal activity the employees were hired to do nor integral or indispensable to the employees’ duties.  As such, according to the Supreme Court, the security screenings are “postliminary” to the principal activities the employees were hired to do.

After the Supreme Court decision in Integrity, the Ninth Circuit Court of appeals remanded the case back to the district court for further proceedings on the pending state law claims.  The Plaintiffs dismissed their FLSA claims, but added state law claims under Nevada and Arizona law.  On September 19, 2018, after almost eight years of litigation, the Plaintiffs got a glimmer of hope when the Sixth Circuit held the Plaintiffs’ may have a claim under Nevada state law.  The Sixth Circuit rejected various arguments couched under the 2014 Supreme Court decision in Integrity.  The Sixth Circuit found Nevada had not yet adopted the Portal-to-Portal Act and that under the broad definition of “work” as defined by federal case law, time going through security checks may constitute compensable time under Nevada wage laws.  The fight is far from over, but at least for now, the Nevada Plaintiffs get to keep litigating this case at the district court level.

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