Good decision, bad law

Opinion by Michael Mestitz
Jan. 8, 2015, 9:32 p.m.

In Integrity Staffing Solutions v. Busk, Jesse Busk and Laurie Castro, two workers in a warehouse that packages and ships goods for Amazon customers, brought a class action against the temp agency that employed them. Integrity Staffing Solutions required its workers to wait in line for security screenings at the end of each day, sometimes for up to 25 minutes, and Busk and Castro argued that they should be paid for the time it took them to be screened. (Amazon has contended that “employees walk through postshift security screening with little or no wait.”)

On Dec. 9, the Supreme Court unanimously rejected the claim, to widespread criticism from commentators. Harvard Law professor Noah Feldman at Bloomberg View argued that there was something “fundamentally wrong” with the Court’s decision, and that the liberal justices who joined the decision were “supremely uninterested in the moral logic of employee compensation.” Alison Griswold at Slate observed that the decision “all but assured” that companies wouldn’t have incentive to improve their screening systems to be quicker and more efficient. And Susan Adams at Forbes wrote that “it seems unjust on its face that workers not be compensated for time the employer insists workers spend going through a required procedure.”

There are certainly good reasons to dislike the result, given the realities of the circumstances. Increasingly, warehouse workers are subject to exit searches, and seasonal hiring means that more and more workers might be subject to delays: As John Herrman has observed, metrics-driven employers like Amazon have little incentive to speed up screening after the Court’s decision, particularly given that according to one business group, the warehouse industry loses an estimated $16 billion per year to theft. If they are not forced to pay for employees’ waiting time in wages, cost-conscious retailers have every incentive to keep costs down by conducting exhaustive security screenings.

The thing that may seem frustrating to critics of Integrity Staffing Solutions, however, is that the reasoning of the Court is basically sound. Justice Thomas’s opinion is a relatively straightforward application of the 1947 Portal-to-Portal Act, which Congress passed in response to judicial interpretation of the earlier Fair Labor Standards Act that construed “work” and “workweek” too broadly. In the Portal-to-Portal Act, Congress provided that employers were not responsible for compensating employees for “activities which are preliminary to or postliminary to” the primary purpose of their employment, and “which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases such principal activity or activities.” Court decisions interpreting that language have sorted various activities on either side of that line: The time chemical workers took to shower and change clothes to remove toxic residue, and the time meat cutters took to sharpen their blades, have been held compensable under this standard; conversely, the time it took poultry plant employees to don protective gear was deemed noncompensible because it was “two steps removed” from their duties on the production line.

The touchstone of the law has always been whether the activity in question was an “integral and indispensable part” of the activities for which the worker was hired; not, as the workers and the lower court would have it, whether the employer required workers to engage in a particular preliminary or postliminary activity. This interpretation accords with the approach taken by the Department of Labor in its administrative regulations and in an opinion letter from 1951, which advised that postshift security searches of factory employees conducted “for the purpose of preventing theft” were noncompensible. Indeed, in Integrity Staffing Solutions, the Solicitor General’s Office, which represents the United States government before the Court, sided with the employer.

In short, the Court had a very strong basis for its reasoning, considering all the usual tools it is bound to employ: the text of the statute (as virtually everyone will agree takes primacy), as well as the legislative history, contemporary administrative interpretations, and strong precedent. The classic statement of the judicial role is to “say what the law is,” but that doesn’t mean that the judiciary is invited to rewrite it wholesale.

Integrity Staffing Solutions may be a bad decision, but it is “bad” as a matter of results, not as a matter of jurisprudence: The Court did exactly as it was required to do in applying the law and precedent and articulating a rule of decision. We wouldn’t want it to do more.

What we do want, and what has become increasingly impossible in the recent partisan gridlock, is for the law to change. There is a long history of interbranch dialogue between the judiciary and the legislative branches, and many instances in which Congress has amended current law or passed new law in direct response to a Supreme Court decision that it didn’t like — consider the Religious Freedom Restoration Act, the Lilly Ledbetter Fair Pay Act, or even the Portal-to-Portal Act at issue in Integrity Staffing Solutions. But the grinding halt of the legislative gears threatens this dynamic. The last two Congresses have been the least productive in this country’s history, and at this rate, it is unrealistic to expect speedy legislative response on issues that might have previously generated the type of interbranch dialogue that is so healthy for the balance of powers.

Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at mmestitz ‘at’ and cayres ‘at’

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