Local lawsuit mirrors FLSA class action appeal to be decided by the U.S. Supreme Court

In Johnson v. Amazon.com dedc, LLC, No. 3:14-cv-01797 (D.S.C. May 2, 2014), seven South Carolina Amazon warehouse workers sued Amazon on behalf of themselves and similarly situated employees alleging unpaid overtime in violation of the Fair Labor Standards Act (“FLSA”) at Amazon’s fulfillment centers in West Columbia and Spartanburg. Plaintiffs allege that they should be compensated for time spent going through “intensive and time-consuming security screening” to enter and exit the fulfillment centers (Compl. ¶35) and for similar security procedures at the start and end of meal breaks. Such security procedures include scanning employee ID badges, passing through security screenings and metal detectors, walking long distances to and from time clocks, and waiting in line to clock in. The complaint estimates that off-the-clock security procedures took 5 minutes and uncompensated travel time inside the building around meal times took approximately 6-7 minutes in each direction. Those small increments of unpaid time could quickly add up with the alleged “hundreds (and, possibly thousands)” of similarly situated South Carolina Amazon fulfillment center employees (Compl. ¶27).

Sound familiar? Amazon is no stranger to FLSA class action claims from its warehouse workers alleging unpaid overtime due to its long lines at security checkpoints. The Supreme Court recently granted certiorari in Integrity Staffing Solutions, Inc. v. Busk to answer the question of whether time spent in security screenings at Amazon warehouses in Nevada is compensable under the FLSA. In the decision below, the Ninth Circuit found such time to be compensable under the FLSA, see Busk v. Integrity Staffing Solutions, Inc., No. 11-16892 (9th Cir. Apr. 12, 2013), but the Second and Eleventh Circuits have reached the opposite conclusion in similar cases. See Gorman v. Consolidated Edison Corp., 488 F.3d 586, 593-94 (2d Cir. 2007) (time spent completing security procedures for nuclear power plant employees not compensable); Bonilla v. Baker Concrete Construction, 487 F.3d 1340 (11th Cir. 2007) (time spent completing security procedures for Miami International Airport employees not compensable). Under the Portal-to-Portal Act, 29 U.S.C. § 251, preliminary and postliminary activities, such as the security screenings at issue in Amazon’s fulfillment centers, are compensable under the FLSA if they are “integral and indispensable” to the principal activity that the employee is employed to perform. Are security procedures at the world’s largest online retail seller of goods “integral and indispensable” to the warehouse workers’ jobs? The Supreme Court will ultimately decide. (In all likelihood, the District Court for the District of South Carolina will stay proceedings in Johnson pending the Supreme Court’s ruling.)

With tens of thousands of employees and fulfillment centers in 14 states, the impact on Amazon is undeniable. But the impact of the Supreme Court’s decision will be felt by countless other employers with time clocks located inside secure facilities. To minimize exposure to FLSA claims, and collective action FLSA claims in particular, employers should pay close attention to the tasks performed directly before or after a shift or meal break – things like security checkpoints, travel, donning and doffing, and time spent waiting or on call. This first phase of the collective certification process in an FLSA action has a relatively low bar, and the threat of double damages under the FLSA makes these cases worth employers’ attention.

Integrity Staffing Solution’s brief on the merits is currently due May 28, 2014. Amazon will need to respond to the Johnson complaint shortly thereafter. We’ll keep an eye on both cases.