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Unpaid Wages Lawsuit Being Watched Very Carefully

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Washington, DCTomorrow, the US Supreme Court is scheduled to hear arguments over an off-the-clock work lawsuit involving the giant online retailer Amazon Inc. What the top court decides will determine whether or not the unpaid wages lawsuit will get to federal trial court. If it gets that far, Amazon may find itself on a track that could eventually result in a $100 million bill to settle compensation claims over back wages from some 400,000 workers.

At issue are the oft-maligned security checks that Amazon requires employees who toil at massive distribution centers to go through, in an effort to avoid theft of small appliances and electronics easily concealed in clothing or in a purse. A study by Richard C. Hollinger, director of the Security Research Project at the University of Florida, noted that employee theft cost retailers an estimated $18 billion in losses in 2012.

Plaintiff Jesse Busk of Henderson, Nevada, doesn’t disagree with the need for security checks. He just wants to be paid for them. “[Amazon] did the [security checks] on my time,” Busk told Bloomberg (10/6/14) in an interview about his unpaid wages claim. “If people are stuck in your building and they’re not allowed to leave, why don’t you go ahead and pay them?”

Busk is not suing Amazon directly, but rather the temp staffing company for whom he worked, Integrity Staffing. The latter placed him at the Amazon site. According to Bloomberg, Busk took home about $12.35 an hour working a 12-hour shift. His job involved pushing a cart around the massive distribution warehouse located in North Las Vegas, collecting a host of products for distribution. He estimated that during those 12 hours he would walk about 15 miles.

At the end of the day, Busk and his fellow employees were tired. But before they could leave the premises, hundreds of employees were required to stand in two lines, single-file, in order to go through a security screening. Keys, belts and cell phones were placed in a tray before each employee went through a metal detector, and then collected their belongings while the others waited. Should the metal detector sound, the employee would be stopped and searched with a wand - again, while the people behind them waited.

Require it? Mandate it? Then pay for it

Plaintiffs have long complained to their unpaid wages attorney that provided an employer requires such security screening on the premises, the employer should be prepared to pay for it. “You’re completely exhausted because the shift is so long, then you have to stay all this extra time off the clock,” Busk said, in comments published in Bloomberg. “My main concern was that they were stealing.”

The off-the-clock work issue is not new. In 2013, Amazon settled an unpaid wages lawsuit brought by a worker at its distribution center in Murfreesboro, Tennessee. The lead plaintiff, a borderline diabetic who only worked at the facility for little over a month before she had enough, claimed that security checks could take as long as 15 minutes and had to be done several times a day as a prerequisite for employees to leave the floor for lunch breaks or rest periods. It was alleged that some employees simply didn’t bother taking their rest periods - as required by law - as a result of time lost in the security screening.

It was a small case, with Amazon paying from $252 to $5,808 in compensation and back wages to about 15 employees.

The Busk case is much bigger, and the Supreme Court’s ruling could have a ripple effect on other pending cases involving companies such as Apple Inc., CVS Health Corp., J.C. Penney Co., TJX Cos., and Ross Stores Inc.

This case could also be pivotal for workers, says a law professor from the University of Washington. “It’s a much bigger deal than just about searches,” said Eric Schnapper, in comments published in Bloomberg. “If the court adopts the company’s view, it would allow employers to require employees do a variety of tasks once their shift ends.”

While Amazon did not comment on pending litigation or matters that are currently before the courts, Bloomberg notes that a September 15th filing in Kentucky characterizes Amazon as having the view that time spent waiting to pass through a security check is not “compensable work.” Amazon also argues that it has no jurisdiction in responding to an unpaid wages claim by an employee working for a temporary staffing agency, and therefore not directly employed by Amazon.

It has been reported that queues of fulfillment workers waiting for security screenings have been moving more quickly in recent months, due to a change in protocol that sees any individual who trips the metal detector separated from the line to wait for a wand search, allowing the queue to keep moving.

Still, plaintiffs in the unpaid wages lawsuit claim that regardless of how fast or slow the line moves, so long as the employer requires the employee to undergo screening on company premises before they can leave, they should remain on the clock and paid for their time.

Bloomberg notes that an update to the Fair Labor Standards Act (FLSA, 1938) that occurred in 1947, known as the Portal-to-Portal Act, noted that employers did not have to pay workers for getting to and from their work stations. However, in 1956, a ruling by the US Supreme Court found in favor of workers at a car-battery plant who claimed they should be paid for time spent changing into and out of protective gear as required by the employer.

Needless to say, industry watchers will be following this Amazon unpaid wages claim very carefully. Arguments will be heard October 8 in the US Supreme Court.

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