Briefs Recently Filed
Must hourly employees be paid for time spent in security screenings under the Fair Labor Standards Act (FLSA)? The Court will decide this seemingly simple question in Integrity Staffing Solutions v. Busk. State and local government employees who work in courthouses, correctional institutions, and warehouses routinely go through security screening at the beginning and/or end of the workday.
Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders. They claimed that they should have been paid for the time they spent waiting and going through security screenings to prevent theft at the end of each shift.
The FLSA requires that “non-exempt” employees be paid for “preliminary” and “postliminary” activities if they are “integral and indispensable” to an employee’s principal activities. The Ninth Circuit concluded time spent in security screening is compensable because security checks must be done at work, are necessary to employees’ primary work as warehouse employees, and are done for the employer’s benefit.
The SLLC’s amicus brief argues that the Ninth Circuit improperly excluded “integral” from the “integral and indispensable” test. “There is nothing about removing personal belongings from one’s pockets and walking through a metal detector that can be characterized as ‘organically joined or linked’ to retrieving items from inventory and filling customers’ online orders.” If the Supreme Court agrees with the Ninth Circuit, the SLLC’s brief warns that commuting to and from work could be compensable. Finally, the SLLC’s brief points out that as the nation’s largest employer, state and local government can ill-afford higher payroll costs.
James Ho, Ashley Johnson, and Andrew LeGrand, of Gibson, Dunn & Crutcher, Dallas, Texas wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, Government Finance Officers Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.
The Court will decide in North Carolina State Board of Dental Examiners v. FTC whether state boards with members who are market participants elected by their peers must be “actively supervised” to be exempt from federal antitrust law.
The North Carolina State Board of Dental Examiners is a state agency primarily made up of dentists elected by other dentists. The Board, which has the power to enjoin the unlicensed practice of dentistry, successfully expelled non-dentist providers from the North Carolina teeth-whitening market. The Federal Trade Commission found that the Board engaged in unfair competition in violation of federal antitrust law.
The state action doctrine exempts states from federal antitrust law. It applies to private parties if they are acting pursuant to a clear state policy of anti-competition and are being actively supervised by the state; substate actors only have to be acting pursuant to a clear state policy. The Board argued that it does not need to be actively supervised because it is a state agency. The lower court disagreed concluding that when the majority of a state agency is made up of market participants who are chosen and accountable to fellow market participants, active supervision is required. The court reasoned that a state agency may not “foster anti-competitive practices for the benefit of its members.”
The SLLC’s brief points out that states typically have hundreds of boards and commissions that are prohibited by state law from engaging in self-interested decision making, meaning active supervision is unnecessary. The SLLC’s brief also argues that precedent and the practical difficulty of actively supervising hundreds of boards and commissions indicate active supervision should not be required.
Seth P. Waxman, Thomas G. Sprankling, and Alan Schoenfeld of WilmerHale wrote the SLLC’s brief. The National Governors Association, the National Conference of State Legislatures, and the Council of State Governments joined the brief.