Wednesday, February 8, 2012

FLSA Follies: Security Screening As Time Worked

In recent years, as personal search technology improved, a number of employers began introducing various types of screening inspections in their workplaces. Such security inspections have always been in place for sensitive areas like public utilities or transportation hubs, but many private sector employers have begun using these processes as well.

These inspections typically occur before or after (or both) an employee's workday. Naturally, employees began to assert claims that this additional time spent in inspections and screening should be considered time worked for purposes of computing hourly and overtime compensation. Historically, courts have rejected these types of claims, especially in circumstances where the screenings are required by government regulation, such as at airports or power plants. The thought process was that such inspections were not performed for the benefit of the employer, but required by the governmental entity. But at least one relatively recent case determined that pre-and post-work inspections were not to be considered time worked and compensable when they were performed as part of an employer's loss prevention program.

Fast forward now to the present day-a case recently surfaced in California (it's always California), in the form of an hourly workers' class-action asking for compensation for loss prevention, bag inspections that cut into the California mandated meal break period. In addition, there are several other class actions that have been filed against retail establishments that engage in loss prevention inspections that usually occur at the end of a work shift.

The California cases are particularly problematic because of the state's mandatory meal break statute, which requires mid-shift unpaid time off. Inspections that are performed around the meal break are arguably viewed as compensable time worked, or alternatively, as violations because the inspections cut into the unpaid meal break time. Employers in states with mandatory meal or rest breaks need to be aware of this trend.

There is at least an argument that the loss prevention inspections should not be considered time worked because they are not a principal work activity for which the employee must be paid. On the other hand, it doesn't take much effort to argue that these inspections are clearly done for the benefit of the employer, and that the time it takes to complete them is therefore compensable. I think the key here is to minimize the amount of time employees actually spend undergoing inspection (the more time spent, the stronger the argument that the time should be considered work time), to minimize any type of loss prevention inspection that occurs between the start and end of work shifts, and make whatever adjustments are necessary to the employees' schedules so that the inspection time does not infringe on rest or meal break time, where possible.

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