According to the Supreme Court of the United States (SCOTUS), nonessential work activities can go uncompensated. Maybe I should worry. Does this mean I don’t have to be paid when I answer the telephone or make coffee or chat about the games over the weekend during work? What about going to the bathroom? Is that not essential? It seems to be an interesting legal decision, but most everything out of SCOTUS is interesting, in one way or another.
The December 9 decision centered on departing warehouse workers required by management to undergo security screening to control shrinkage. Employees claimed they should have been paid for the time they spent going through the company’s security screening and had sued the company for back wages and overtime pay.
The high court reversed an April 2013 ruling by the 9th U.S. Circuit Court of Appeals, which had found that the screenings were an integral part of the warehousing job done for the benefit of the employer and should be compensated.
The Supreme Court Justices ruled to the contrary, that the screening process is not a "principal activity" of the workers' jobs under the Fair Labor Standards Act and therefore is not subject to compensation.
Justice Thomas wrote the unanimous opinion:
For workers to be paid, the activity in question must be “an intrinsic element” of the job and “one with which the employee cannot dispense if he is to perform his principal activities…”
A business group called the Retail Litigation Center submitted a brief supporting the warehousing company, saying the industry in general loses $16 billion annually in thefts. The ruling will probably help other companies facing similar lawsuits like Amazon, CVS Health Corp and Apple Inc, according to the warehousing company's lawyers. Amazon, the world's largest online retailer, was not directly involved in this case.
Others have complained that this is a typical legal decision that makes no common sense. But it seems that all the powers are united against the security-screened workers.
Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a brief concurring opinion to stress that the high court's opinion was consistent with Labor Department regulations.
President Barack Obama's administration had backed the warehousing company's position. Both the company and the government said the security checks are not central to warehouse work and instead are more like waiting in line to punch a time clock, an activity some courts have found does not require compensation.
I must admit that I find such agreement somewhat stunning. Sure, it’s great for retailers, because shrinkage truly is a terrible problem for most of them. The ability of some like Costco to reduce pilfering and shoplifting to almose zero by requiring every departing customer go through a security check where their invoice is checked against their purchases gives them almost twice the profit margin of similar retailers. But I worry about what this precedent means, when every HR professional knows there are rapacious employers out there who will immediately jump on this excuse to argue that any number of normal workplace activities no longer require compensation. Some brutal bosses will begin dreaming up tasks that would benefit them but could be ordered to be done without pay.
What might the future hold for us? I call upon our readers to draw upon their extensive knowledge of job analysis to suggest other elements of normal work that might similarly go uncompensated tomorrow. What other tasks or behaviors might fall under this new and shocking exception, to be transformed into unpaid volunteer activities without extrinsic value (without pay, in other words)?
E. James (Jim) Brennan was Senior Associate of ERI Economic Research Institute, the premier publisher of interactive pay and living-cost surveys. After over 40 years in HR corporate and consulting roles throughout the U.S. and Canada, he’s pretty much been there done that (articles, books, speeches, seminars, radio/TV, advisory posts, in-trial expert witness stuff, etc.), serves on the Advisory Board of the Compensation and Benefits Review and will express his opinion on almost anything.
Creative Commons image "money hand" by neubie