The practice of conducting unpaid security checks of employees at their workplaces is under fire across the country. Many employers have been hit with class action suits seeking to test the legitimacy of this practice under the Fair Labor Standards Act (FLSA), as well as under various state laws.
The FLSA does not require an employer to compensate its employees for “preliminary” or “postliminary” activities. An exception occurs, however, when these activities are “integral and indispensable” to the employees’ principal work activities. The judicial determination of what is “integral and indispensable” is, however, fact-intensive.
Comparisons to “donning and doffing” cases are inevitable but not determinative. For instance, with respect to the doffing and donning of protective gear, decisions often turn on whether such gear is required by the law, the employer, or the nature of the work. In contrast, courts have been hesitant to find time engaged in security checks compensable even if required by the law (e.g., airports) but appear more willing to do so where the sole purpose of the security checks is to prevent the theft of retail merchandise.
Therefore, in deciding whether the time employees spend in security checks is compensable, it is necessary to examine all the facts to determine whether the time involved is both “integral and indispensable” to the employees’ principal work activities. For example, what if an employer requires all individuals, including non-employees, who exit its facilities to be screened? What if an employer screens only some employees each day via random selection? Either suggests that the screening is not “integral and indispensable” to work.
What is certain is that employers who conduct security checks will see lawsuits requesting compensation for the time spent in both the screening and in its attendant waiting lines. As a result, both the true need and the best implementation of such security measures need to be reconsidered in light of the litigation risk.