The question before the court was whether the employees - warehouse workers who retrieved inventory and packaged it for shipment to Amazon customers - were entitled, as hourly, non-exempt employees to be paid for time that they were required to undergo antitheft security screenings before they were allowed to leave the warehouse in which they worked each day.
The record before the court showed that the class of employees who
brought suit under the federal Fair Labor Standards Act of 1938 (FLSA) were routinely required to submit to security inspections and screenings that amounted to "roughly 25
minutes per day" after they had checked out but before they could go
home. The employees alleged that the screenings were conducted "to
prevent employee theft" and they were intended solely "for the benefit
of the employers and their customers." The additional uncompensated
time, based upon a five day work week, amounted to an additional 6.8
hours at the workplace each week.
In
proceedings below, the U.S. District Court for Nevada dismissed the
complaint of the employees for a purported failure to state a claim
under Fed. Rule Civ. Procedure 12. The court held that "the time spent
waiting for and undergoing security screenings was not compensable under
FLSA" because the employees could not show that the screenings were an
indispensable and principal part of the activities that the employees
were required to perform."
The United States Court of Appeals for the Ninth Circuit reversed the
district court's decision, finding that "postshift activities that would
ordinarily be classified as noncompensable postliminary activities are
nevertheless compensable as integral and indispensable to an employee's
principle activities if postshift activities are necessary to the
principal work performed and done for the benefit of the employer," as
the record before the court showed.
Inexcusably,
the Obama administration - despite the consistent support that it has
received from organized labor - supported the employer's appeal and
urged that the decision of the Ninth Circuit Court of Appeals be
reversed.
Writing
on behalf of court, Justice Thomas disagreed with the Court of Appeals.
In an extensive and tortured exegesis of the language of the
Portal-to-Portal amendments to the Fair Labor Standards Act that were
passed by a Republican-controlled Congress in 1947 to exempt employers
from liability for future claims for "activities which are preliminary
to or postliminary to said activities or principles." Thomas insisted
that question was the sole issue before the court.
Not
surprisingly, given his narrow definition of what he and the other
eight judges agreed was the sole issue before the court, Thomas opined
that "the security screenings at issue here are noncompensable
postliminary activities" because "Integrity Staffing did not employ its
workers to undergo screenings" and that the "screenings were not
integral and indispensable"' to the employees' duties as warehouse
workers. Left unanswered were the obvious questions: What
would have happened if the employees refused to wait for the screenings
and insisted upon their right to go home immediately after they finished
work? Would they still be employed the next day?
The
American legal system has long been a captive of the powerful, the
wealthy and the well-connected, and almost uniformly hostile to unions
and to the rights of workers. Throughout the nineteenth century most
state courts treated labor unions and strikes as illegal conspiracies in
restraint of trade.
With
the enactment of the National Labor Relations Act in 1935, the right of
all workers "to organize and bargain collectively through
representatives of their own choosing" was pronounced for the first time
to be national public policy. Other New Deal legislation included the
Walsh-Healey Government Contracts Act, which required the payment of
prevailing wages on government contracts in excess of $10,000; the
Railroad Retirement Act; and the Fair Labor Standards Act, which
provided for the first time, with certain exceptions, a nationwide
minimum wage floor and maximum workweek of 40 hours per week within
three years of its enactment date.
Since
the 1940s, however, the American labor movement has been forced into
retreat. After the death of Franklin Roosevelt and the election of a
Republican Congress in 1946, the rights of workers have been
continuously under siege. The first great success of New Deal critics
was achieved with the enactment of the Taft-Hartley Act in 1947, an act
that was passed over President Truman's veto. The effect of that
legislation was to outlaw "closed shops" and to permit individual states
to allow "open shops" - i.e. shops in which elected unions could not
require all of the employees to belong to the unions, irrespective of
whether the non-union employees also received and enjoyed the benefits
of collective bargaining.
As
a result of that Taft-Hartley Act, corporations began an inevitable
migration to the South where welcoming state legislatures hastily
enacted "right-to-work" laws. The migration of these manufacturing
companies away from the unionized urban centers of the Midwest and North
left hundreds of mill towns impoverished and desolate, and the union
movement was effectively eviscerated. Thereafter, it did not take long
for the owners of corporations to discover that, once they had escaped
from the threat of unionization, they could also escape almost all
government regulation by moving their businesses and manufacturing
operations out of the United States to low-wage countries in the Third
World.
Since
the advent of the Reagan administration, the assault upon the rights of
unions and employees has accelerated. The Democratic administrations of
Bill Clinton and Barack Obama have been equally culpable as reflected
in the former's support for NAFTA and the latter's endorsement of the
proposed TransPacific Partnership Agreement. They, too, have been
uncritical supporters of the myth that "free trade" is somehow a
positive good for the economy, despite all of the evidence that shows
that out-sourcing has been an unmitigated disaster for American workers
and has created soaring trade deficits that converted the United States
from an exporting country to a net importer increasingly dependent upon
foreign goods.
Because
of pervasive hostility to unions and the demise of organized labor as a
movement, the American workplace is increasingly governed by the
nineteenth century doctrine of employment-at-will. The doctrine of
at-will employment is a legal fiction that was created by state courts
during this country's first Gilded Age in an era. The doctrine
repudiated the long-standing presumption set down by Blackstone in his Commentaries
that any indefinite employment contract was for one year. Forty-nine
states - with the exception of Montana (which has abolished at-will
employment by statute) - still subscribe to that legal concept.
The
legal fiction of at-will employment essentially posits an equality of
bargaining power between individual employers and employees: Each is
free to accept or reject employment, resign or be fired without cause or
restriction. However, since employers in "union-free" environments are
legally permitted to unilaterally impose, almost without restriction,
whatever conditions of work they require as to hours, compensation, and
often restrictions on re-employment after discharge in the form of
non-competition agreements, the relationship is most often one of
inequality in which the employees are burdened and the employers
benefited.
The market-based paradigm upon which at-will employment is based continues to inform and control public policy decisions. It has also further exacerbated the increasing economic inequality, destroyed the livelihoods of American employees and made the American Dream to a cruel hoax for everyone except the1%.
Historically,
those nominated as justices to the Supreme Court, with precious few
exceptions, have had little experience litigating cases on behalf of
employees or fighting for the rights of the downtrodden. With one or two
exceptions, this is true of the current court. In addition, as
graduates of elite law schools, with successful prior careers in the
private and public sectors, Supreme Court justices have cultivated
scores of influential and well-heeled friends and acquaintances over the
years whose values they share. One also suspects that they have never
forced to stand in a line to purchase concert tickets or have ever
shopped at Wall-Mart.
For
their efforts, the eight associate justices are paid $213,000 per
annum; the chief justice receives a salary $223,500. The justices enjoy
life tenure for good behavior; their pensions will never be lower than
their exiting salary should they choose to retire; they enjoy the same
generous healthcare available to all federal employees; they have
opportunities to travel to all judicial districts throughout the United
States and its overseas territories at taxpayer expense; and they enjoy a
minimum of 3 full months of vacation each year. For those reasons, the
chasm between the nine judges in the court and the hard-scrabble hourly
employees who toil for Amazon in its warehouses is vast, but is it
asking too much to expect a little empathy?
Sadly,
the unanimous decision of the United States Supreme Court in this case
is further evidence that all nine of the judges are tone deaf, oblivious
to the existence of economic and legal inequality, and unable to
articulate a vision of justice that does more than comfort the already comfortable and afflict the already sorely afflicted.
Merry Christmas from the Supreme Court.