There have been many cases brought recently focusing on the compensability of security checks and in these days of temperature checking for COVID, we expect to see many more. Some of these cases have gone for the employer and others for the employees. In a recent case seeking compensation under the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A. 34:11-56a et seq.,employees sought compensation for time spent undergoing mandatory post-shift security screenings at an Amazon facility and for time spent on meal breaks. The Company relied upon the United States Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk (Busk I), 574 U.S. 27 (2014), which held that similar security screenings were not compensable under the federal Fair Labor Standard Act (“FLSA”). The Company asserted that the NJWHL should be interpreted in the same manner as the FLSA, but the Court ultimately rejected that contention. The case is entitled Vaccaro v. Amazon.Com and was filed in federal court in the District of New Jersey.
The plaintiff alleged that she must wait among hundreds of other warehouse employees to pass through security after clocking out at the end of each shift. This check included walking through a metal detector and placing personal items on a conveyer belt to be scanned via X-ray. If additional scrutiny was deemed necessary, the employee must then submit to a mandatory “secondary screening” for a physical search of the person. The plaintiff also claimed that because the Company subjected employees to the same security procedure should they want to leave the building for lunch (as well as the remoteness of the facility) many employees do not leave the building, although they do get a thirty-minute lunch period. The plaintiff asserted that this means employees cannot engage in their own pursuits at lunch, making that time compensable as well.
The Court noted that neither the New Jersey Supreme Court nor any other New Jersey court has addressed the issue of whether security screenings are compensable under the NJWHL or whether the statute incorporates the Portal-to-Portal Act’s exclusions regarding “postliminary” activities. The Court then “predicted” that the New Jersey Supreme Court would hold that time spent undergoing mandatory security screenings at the end of the workday would be time that the employee was “required to be at his or her place of work” and was therefore working time under the New Jersey Administrative Code section that mandated compensation for “all time” the employee was “required” to be at work. NJAC 12:56-5.2(a).
The Court, however, rejected the claim on compensation for lunches because employees allegedly could not leave the building. The Court concluded that differing from the other mandatory screenings at the end of the workday, which were compelled in order to leave the premises and benefitted only Amazon, the act of undergoing a security check during the course of the workday was the employee’s choice because they wanted to eat lunch outside of the premises. In other words, it benefitted primarily the employee, not Amazon. Thus, the Court held that time spent on meal breaks during the course of the workday were not “hours worked” under NJAC 12:56-5.2(a) .3.
This is a bad decision. Waiting on line for security checks has nothing to do with the primary job of the employee and is not integral nor indispensable to that job function. I think the State should adopt the Portal to Portal Act, for consistency with the FLSA. With that said, I am thrilled about the portion of the decision relating to lunch as the NJDOL has for years taken the position that lunch was compensable if the employees could not leave the premises.
I’ll take what I can get…