Is an End-of-Shift Security Clearance Compensable? The Supreme Court Will Decide Next Term

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On Monday, March 3, 2014, the Supreme Court of the United States agreed to decide whether a company was required to pay overtime compensation to its workers for the time they spent passing through a security clearance at the end of each shift. In a case on appeal from the Ninth Circuit Court of Appeals, the workers claimed that their employer violated the federal Fair Labor Standards Act (FLSA) and state labor laws by failing to pay them for the time they spent in security screenings that the company used to prevent theft.

Integrity Staffing Solutions, Inc., which provides staff and warehouse space to companies, required its workers to undergo a search at the end of each shift. As part of the search, which required employees to wait up to 25 minutes, employees were asked to remove their wallets, keys, and belts and pass through metal detectors.

Two warehouse employees of Integrity filed suit against the company on behalf of a putative class of workers claiming federal and state law wage-and-hour violations. The district court granted Integrity’s motion to dismiss the workers’ complaint, holding that the time they spent passing through the security clearance was not compensable.

The case was appealed to the Ninth Circuit. The appellate court noted that the FLSA, as amended by the Portal-to-Portal Act of 1947, does not require employers to compensate employees for activities that are “preliminary” or “postliminary” to employees’ “principal activity or activities.” But, preliminary and postliminary activities are compensable if they are “integral and indispensable” to an employee’s principal activities. According to prior case law, to be “integral and indispensable,” an activity must be “necessary to the principal work performed” and “done for the benefit of the employer.”

The Ninth Circuit found that the security clearances were necessary to the employees’ primary work, which involved access to merchandise, and were done for the benefit of the employer, as the security screenings were intended to prevent theft by employees. Thus, the court ruled that the warehouse workers had stated a valid claim for relief under the FLSA. In arriving at this conclusion, the Ninth Circuit distinguished cases from other circuit courts (namely, the Second Circuit and the Eleventh Circuit) holding that time spent clearing security is not compensable under the Portal-to-Portal Act. The security screenings at issue in Integrity Staffing, the court found, were implemented due to the nature of the employees’ work and because of employees’ access to merchandise. In other decisions the security screenings had been unrelated to employees’ primary work and had not been implemented for the employer’s benefit. Noting that there was no blanket rule that time spent going through security screening is noncompensable, the appellate court stated that the “integral and indispensable” test should have been applied to analyze the warehouse workers’ claims.

The Supreme Court agreed to hear the case to decide whether time spent in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act. The Court, which recently decided a case concerning the compensability of time employees spend donning and doffing protective gear at the beginnings and ends of their shifts, Sandifer v. United States Steel Corp., will decide Integrity Staffing Solutions, Inc. v. Busk next term.

According to Alfred B. Robinson, Jr., a shareholder in the Washington, D.C. office of Ogletree Deakins, “This case raises another important FLSA question and will give the Supreme Court an opportunity to clarify the “integral and indispensable” standard for determining which of an employee’s activities are compensable. Heretofore, companies have implemented a variety of security screening or bag-check procedures with the understanding that such time is not compensable. The Ninth Circuit’s decision runs contrary to this general consensus and created potential liability for these companies. Thus, this case could have a significant financial as well as legal impact. In addition, there are a number of other cases pending where the compensability of time going through security screenings is at issue. It is encouraging that the Supreme Court has entertained a number of cases involving the Fair Labor Standards Act to provide greater clarity for both employees and employers.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.