SCOTUS Strikes Another Blow Against Workers

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          The unanimous decision of the United States Supreme Court in the matter of Integrity Staffing Solutions, Inc. v. Busk, et al (No. 13-433, December 9, 2014) is further evidence that the alleged commitment of the American legal system to equal justice is little more than a sham and a platitude.

           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. 


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