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"Suffered or Permitted to Work" - When Is a Worker an Employee?

Tuesday, October 21, 2014 By Ellen Dannin, Truthout | Op-Ed
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2014.10.21.Amazon.MainAmazon building in Santa Clara, California. Amazon is the world's largest online retailer. (Photo Ken Wolter / Shutterstock)

The Supreme Court kicked off its 2014-2015 term with a case called Integrity Staffing Solutions, Inc. v. Busk. The issue in the case is whether employees who do work for Amazon had a right to be paid for time they spent waiting - for as long as 25 minutes - to be screened for theft.

According to Amazon Spokeperson, Nina Lindsey: "We have a longstanding practice of not commenting on pending litigation, but data shows that employees walk through post shift security screening with little or no wait."

Or, to be more accurate, this is a case in which Amazon was not named as a party in the case, because other corporations acted on Amazon's behalf. In this case, the named defendant was Integrity Staffing Solutions (ISS).

The Integrity Staffing Solutions website clearly shows that it is an agent of Amazon who acts on Amazon's behalf. For example, the website says, "Here's where to find Amazon warehouse jobs, light industrial work, temporary and seasonal jobs, part-time employment and a job to make you proud." Indeed, Integrity Staffing's website advertises a number of jobs, but it has specific links only to jobs at Amazon.

What This Case Is About

No doubt, there are many ways to think about this case. It is certainly fair to say that this is a case involving a powerful and wealthy corporation that uses its power and wealth to squeeze workers who have little-to-no power and no wealth.

What evidence do we have that Amazon has used that wealth and power in this case? According to www.oyez.org:

At the end of each day, all the workers were required to pass through a security clearance checkpoint where they had to remove their keys, wallets, and belts, pass through a metal detector, and submit to being searched. The whole process could take up to 25 minutes. Similarly, up to ten minutes of the workers' 30-minute lunch period was consumed by security clearance and transition time. In 2010, Busk and Castro sued Integrity and argued that these practices violated the Fair Labor Standards Act (FLSA) as well as Nevada state labor laws.

Amazon is known for creating systems that generate as much revenue as possible for Amazon and that do so by squeezing every penny out of Amazon's system. Amazon could have used those skills and that power to ensure its jobs were good jobs. It could have provided good benefits and pay. Or, at least, it could have shortened the wait time at the end of each day by hiring enough screeners to make the process as quick and dignified as possible. But that is not what Amazon chose to do.

Amazon could also have used its power to give its employees a paid lunch or, at least provide an unpaid lunch break that allowed its employees to use all of that half hour for their own needs. And Amazon could have hired enough screeners to make the process of leaving work as efficient as possible instead of delaying workers' true quitting time 25 minutes after the workers had clocked out. But Amazon did none of these things.

Amazon Is Not a Party to the Case or Is It? - The Nesting Doll Strategy

The American Bar Association's website for this case - and all Supreme Court cases - includes links to the parties' briefs and to amicus briefs. In the Amazon case, notice that, although the plaintiff-employees were doing work for Amazon and Amazon was calling the shots, Amazon was not the focus of this case. In fact, Amazon was not even a party in the case.

The parties are plaintiffs Jesse Busk and Laurie Castro, and the defendant is Integrity Staffing Solutions, not Amazon. It may seem odd that Amazon was not a party when the work was carried out on Amazon's behalf, and the outcome of this case could affect Amazon in the future.

In fact, even though there is almost no mention of Amazon, Amazon's interests were well represented. Amazon's subcontractor - Integrity Staffing Solutions - was the defendant and effectively represented Amazon's interests.

Amazon's interests were also represented by most of the organizations that filed amicus briefs in support of Integrity Staffing Solutions, including briefs by National League of Cities, National Association of Counties, the International City/County Management Association, US Conference of Mayors, Government Finance Officers Association, International Municipal Lawyers Association, National Public Employer Labor Relations Association, and the International Public Management Association For Human Resources, National Retail Federation, the Retail Litigation Center, Inc., Chamber of Commerce of the United States of America, Society for Human Resource Management, National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, and the United States.

Only two amicus briefs were filed on behalf of the plaintiff employees, one filed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the other filed by the National Employment Lawyers Association.

What Is at Stake in This Case?

It was not so long ago that at least some captains of industry took pride in providing a good living for their employees and their families. Now, many of their descendants think nothing of grinding their workers down and paying them as little as possible for as much work as possible.

It appears that Amazon, that is, Integrity Staffing Solutions, has chosen to be a thoroughly modern, cost-cutting corporation that uses every angle to pay its workers as little as possible. For example, Integrity's workers have an unpaid, half hour lunch, during which the workers must also spend roughly 10 minutes being scanned and searched.

If the plaintiff employees win this case, their employer will no longer be able to get free work, and the employer will have an incentive to hire more workers to speed up the time it takes the workers to go through the security line during their lunchtime and at their shift's end.

Why Is This Case Being Heard by the US Supreme Court?

The law in this case involves the Fair Labor Standards Act (FLSA), enacted in 1938. The original FLSA set minimum wage and overtime pay. Over the years, the FLSA has been amended a number of times. This case is based on a 1947 amendment - the Portal-to-Portal Pay Act.

Congress enacted the Portal-to-Portal Act to overturn judicial interpretations of the FLSA that, it was claimed, were causing employers' financial ruin and letting their employees receive windfall payments while not doing work for their employers.

The Portal-to-Portal Act divided employees' activities into three categories - preliminary to working, working and postliminary to working. Only working time was to be paid time. That division may seem reasonable, but the Portal-to-Portal Act defined activities that involved preparing to work - for example, changing into and out of work clothes before or after work - as unpaid time. This does not mean that an employer is forbidden from paying for those periods, but how many employers would voluntarily pay for that time?

In this case, Amazon - or actually Amazon's subcontractor, Integrity Staffing Solutions - takes the position that wait time for screening during lunchtime and when leaving for the day is unpaid time.

These may seem to be trivial issues, but, for the workers, delay may mean missing a ride or having to pay a penalty for picking up a child late or just worrying that a child will be upset if a parent is late. And, to make it worse, this is not even paid time.

Bear in mind that Amazon / Integrity Staffing Solutions had the power to speed up the screening process by hiring more screeners, using more screening stations or having staggered start and end times. Any of these solutions would comply with the FLSA policies in § 2(a), which says the law was "to correct and eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers."

But, of course, that would mean less money for the employer.

While Amazon potentially has the right not to pay for this time, it also has the right to pay for time that is now unpaid. The plaintiff employees obviously felt sufficiently aggrieved that they sued and were able to find a lawyer to take the case.

One must wonder why these companies make lunchtime and time spent passing through security at day's end unpaid. Decisions of this sort that disrespect the workers may eventually lead workers to feeling disrespect for their employers.

Honestly, what is to be lost by making all work good work? In fact, Amazon advertises a book titled Good Work - When Excellence and Ethics Meet. Its blurb says:

What does it mean to carry out "good work"? What strategies allow people to maintain moral and ethical standards at a time when market forces wield unprecedented power and work life is being radically altered by technological innovation? These are the questions at the heart of this important collaboration by three leaders in psychology. Enlivened with stories of real people facing hard decisions, Good Work offers powerful insight into one of the most important issues of our time and, indeed, into the future course of science, technology, and communication.

Perhaps Amazon should read it, rather than just making a buck on it.

Copyright, Truthout. May not be reprinted without permission.

Ellen Dannin

Ellen Dannin is the author of "Crumbling Infrastructure - Crumbling Democracy: Infrastructure Privatization Contracts and Their Effects on State and Local Governance," in winter 2011, Northwestern Journal of Law and Social Policy. She is a former National Labor Relations Board field attorney and the author of Taking Back the Workers' Law - How to Fight the Assault on Labor Rights (Cornell University Press).

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"Suffered or Permitted to Work" - When Is a Worker an Employee?

Tuesday, October 21, 2014 By Ellen Dannin, Truthout | Op-Ed
  • font size decrease font size decrease font size increase font size increase font size
  • Print

2014.10.21.Amazon.MainAmazon building in Santa Clara, California. Amazon is the world's largest online retailer. (Photo Ken Wolter / Shutterstock)

The Supreme Court kicked off its 2014-2015 term with a case called Integrity Staffing Solutions, Inc. v. Busk. The issue in the case is whether employees who do work for Amazon had a right to be paid for time they spent waiting - for as long as 25 minutes - to be screened for theft.

According to Amazon Spokeperson, Nina Lindsey: "We have a longstanding practice of not commenting on pending litigation, but data shows that employees walk through post shift security screening with little or no wait."

Or, to be more accurate, this is a case in which Amazon was not named as a party in the case, because other corporations acted on Amazon's behalf. In this case, the named defendant was Integrity Staffing Solutions (ISS).

The Integrity Staffing Solutions website clearly shows that it is an agent of Amazon who acts on Amazon's behalf. For example, the website says, "Here's where to find Amazon warehouse jobs, light industrial work, temporary and seasonal jobs, part-time employment and a job to make you proud." Indeed, Integrity Staffing's website advertises a number of jobs, but it has specific links only to jobs at Amazon.

What This Case Is About

No doubt, there are many ways to think about this case. It is certainly fair to say that this is a case involving a powerful and wealthy corporation that uses its power and wealth to squeeze workers who have little-to-no power and no wealth.

What evidence do we have that Amazon has used that wealth and power in this case? According to www.oyez.org:

At the end of each day, all the workers were required to pass through a security clearance checkpoint where they had to remove their keys, wallets, and belts, pass through a metal detector, and submit to being searched. The whole process could take up to 25 minutes. Similarly, up to ten minutes of the workers' 30-minute lunch period was consumed by security clearance and transition time. In 2010, Busk and Castro sued Integrity and argued that these practices violated the Fair Labor Standards Act (FLSA) as well as Nevada state labor laws.

Amazon is known for creating systems that generate as much revenue as possible for Amazon and that do so by squeezing every penny out of Amazon's system. Amazon could have used those skills and that power to ensure its jobs were good jobs. It could have provided good benefits and pay. Or, at least, it could have shortened the wait time at the end of each day by hiring enough screeners to make the process as quick and dignified as possible. But that is not what Amazon chose to do.

Amazon could also have used its power to give its employees a paid lunch or, at least provide an unpaid lunch break that allowed its employees to use all of that half hour for their own needs. And Amazon could have hired enough screeners to make the process of leaving work as efficient as possible instead of delaying workers' true quitting time 25 minutes after the workers had clocked out. But Amazon did none of these things.

Amazon Is Not a Party to the Case or Is It? - The Nesting Doll Strategy

The American Bar Association's website for this case - and all Supreme Court cases - includes links to the parties' briefs and to amicus briefs. In the Amazon case, notice that, although the plaintiff-employees were doing work for Amazon and Amazon was calling the shots, Amazon was not the focus of this case. In fact, Amazon was not even a party in the case.

The parties are plaintiffs Jesse Busk and Laurie Castro, and the defendant is Integrity Staffing Solutions, not Amazon. It may seem odd that Amazon was not a party when the work was carried out on Amazon's behalf, and the outcome of this case could affect Amazon in the future.

In fact, even though there is almost no mention of Amazon, Amazon's interests were well represented. Amazon's subcontractor - Integrity Staffing Solutions - was the defendant and effectively represented Amazon's interests.

Amazon's interests were also represented by most of the organizations that filed amicus briefs in support of Integrity Staffing Solutions, including briefs by National League of Cities, National Association of Counties, the International City/County Management Association, US Conference of Mayors, Government Finance Officers Association, International Municipal Lawyers Association, National Public Employer Labor Relations Association, and the International Public Management Association For Human Resources, National Retail Federation, the Retail Litigation Center, Inc., Chamber of Commerce of the United States of America, Society for Human Resource Management, National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, and the United States.

Only two amicus briefs were filed on behalf of the plaintiff employees, one filed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the other filed by the National Employment Lawyers Association.

What Is at Stake in This Case?

It was not so long ago that at least some captains of industry took pride in providing a good living for their employees and their families. Now, many of their descendants think nothing of grinding their workers down and paying them as little as possible for as much work as possible.

It appears that Amazon, that is, Integrity Staffing Solutions, has chosen to be a thoroughly modern, cost-cutting corporation that uses every angle to pay its workers as little as possible. For example, Integrity's workers have an unpaid, half hour lunch, during which the workers must also spend roughly 10 minutes being scanned and searched.

If the plaintiff employees win this case, their employer will no longer be able to get free work, and the employer will have an incentive to hire more workers to speed up the time it takes the workers to go through the security line during their lunchtime and at their shift's end.

Why Is This Case Being Heard by the US Supreme Court?

The law in this case involves the Fair Labor Standards Act (FLSA), enacted in 1938. The original FLSA set minimum wage and overtime pay. Over the years, the FLSA has been amended a number of times. This case is based on a 1947 amendment - the Portal-to-Portal Pay Act.

Congress enacted the Portal-to-Portal Act to overturn judicial interpretations of the FLSA that, it was claimed, were causing employers' financial ruin and letting their employees receive windfall payments while not doing work for their employers.

The Portal-to-Portal Act divided employees' activities into three categories - preliminary to working, working and postliminary to working. Only working time was to be paid time. That division may seem reasonable, but the Portal-to-Portal Act defined activities that involved preparing to work - for example, changing into and out of work clothes before or after work - as unpaid time. This does not mean that an employer is forbidden from paying for those periods, but how many employers would voluntarily pay for that time?

In this case, Amazon - or actually Amazon's subcontractor, Integrity Staffing Solutions - takes the position that wait time for screening during lunchtime and when leaving for the day is unpaid time.

These may seem to be trivial issues, but, for the workers, delay may mean missing a ride or having to pay a penalty for picking up a child late or just worrying that a child will be upset if a parent is late. And, to make it worse, this is not even paid time.

Bear in mind that Amazon / Integrity Staffing Solutions had the power to speed up the screening process by hiring more screeners, using more screening stations or having staggered start and end times. Any of these solutions would comply with the FLSA policies in § 2(a), which says the law was "to correct and eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers."

But, of course, that would mean less money for the employer.

While Amazon potentially has the right not to pay for this time, it also has the right to pay for time that is now unpaid. The plaintiff employees obviously felt sufficiently aggrieved that they sued and were able to find a lawyer to take the case.

One must wonder why these companies make lunchtime and time spent passing through security at day's end unpaid. Decisions of this sort that disrespect the workers may eventually lead workers to feeling disrespect for their employers.

Honestly, what is to be lost by making all work good work? In fact, Amazon advertises a book titled Good Work - When Excellence and Ethics Meet. Its blurb says:

What does it mean to carry out "good work"? What strategies allow people to maintain moral and ethical standards at a time when market forces wield unprecedented power and work life is being radically altered by technological innovation? These are the questions at the heart of this important collaboration by three leaders in psychology. Enlivened with stories of real people facing hard decisions, Good Work offers powerful insight into one of the most important issues of our time and, indeed, into the future course of science, technology, and communication.

Perhaps Amazon should read it, rather than just making a buck on it.

Copyright, Truthout. May not be reprinted without permission.

Ellen Dannin

Ellen Dannin is the author of "Crumbling Infrastructure - Crumbling Democracy: Infrastructure Privatization Contracts and Their Effects on State and Local Governance," in winter 2011, Northwestern Journal of Law and Social Policy. She is a former National Labor Relations Board field attorney and the author of Taking Back the Workers' Law - How to Fight the Assault on Labor Rights (Cornell University Press).