Say you’re an hourly worker at one of Amazon’s warehouses. At the end of each day, you’re required to go through a security check to make sure you haven’t stolen any merchandise. Sometimes it takes only a few moments; other times it can take 20 or 25 minutes. Should you be paid for that time?
It’s a closely watched employment question that has landed in front of the Supreme Court. Employees of Integrity Staffing Solutions, an Amazon warehousing contractor, claim they routinely spend up to half an hour waiting for anti-theft screenings and ought to be paid for that time. But the company is arguing that the checks are not central to the job itself—that they’re not a “principal activity”—and therefore don’t meet the standards for requiring compensation.
Oral arguments on Wednesday demonstrated that the court is somewhat split on the case. Justice Elena Kagan took the stance that merchandise security is, in fact, essential to Amazon in a way that it isn’t to other retailers. “What makes it Amazon?” she asked, according to a transcript. “It’s a system of inventory control that betters everybody else in the business. And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is.” But other justices felt that the check was more similar to clocking in and out of work—a task courts have previously found does not require compensation.
While Amazon isn’t directly involved in the case, the outcome could have a huge effect on it and other companies, such as Apple and CVS. Retailers are understandably interested in conducting security checks—they lose $16 billion annually in thefts, according to the Retail Litigation Center, and such screenings have become standard practice at many warehousing facilities. At the same time, having to pay employees for the extra time they’ve put in each day over weeks and months gets expensive fast. The 9th Circuit Court of Appeals ruled in favor of the workers in April; the Obama administration has thrown its support to Integrity Staffing Solutions.
In a 2005 decision, the Supreme Court ruled the time workers for Iowa Beef Processors (now Tyson Fresh Meats) spent donning and doffing protective gear must be compensated because the task was essential enough to be a “principal activity.” Cynthia Estlund, a professor of employment and labor law at New York University School of Law, says a key issue in the warehouse case is determining whether the security check can be considered analogous to putting on protective gear. “Once you’re engaged in a principal work activity, then the day is continuous,” Estlund says. ”You don’t get to subtract out the waiting time until you’re done performing the principle activities of the job.”
What does seem clear is that allowing employers to require unpaid and thorough security checks gives them no incentive to make the process more efficient or effective for workers. At one point on Wednesday, Justice Antonin Scalia implied that it would be absurd for employers to arrange everything around the convenience of employees. “[An employer] could move his plant, for example, to be closer to the city where the employees live, right?” Scalia said. “It’s his fault that it—that it takes them an hour instead of just 10 minutes” to get to work, the justice added.
But isn’t this a different situation entirely? Workers can decide at least to a certain extent where they live and thus how long their commute times will be; what they can’t control are tasks required of them at the job itself. If Amazon says they must go through a security check, then they go through a security check—and that check might be quicker if there were more people or resources dedicated to conducting it. Legally it might be hard to say whether anti-theft screenings meet the standards for requiring compensation. But in terms of logic alone, it’s clear that the current system has some misaligned incentives.