How Fair is the Fair Labor Standards Act?

Scotland Carter (SC ’24)

The Fair Labor Standards Act (FLSA) was enacted in 1938 in response to the growing number of workplace abuses during the Great Depression. Before 1938, the federal government had not regulated workplace conditions for employees in either the public or private sectors: there was no minimum wage, overtime pay, or working protections for minors. That said, the establishment of the FLSA was monumental, giving employees an avenue to hold their employers to account. Unsurprisingly, employees took advantage of the rights the FLSA granted them. The number of lawsuits employees filed against their employers grew exponentially, becoming a “financial crisis for employers.” Politicians soon began rallying for the FLSA to be amended to protect employers from “excessive” workplace claims by their employees. The FLSA was soon amended with the Portal to Portal Act of 1947, which clearly defined the type of work legally considered “payable.”

The Portal to Portal Act was the first amendment of the FLSA that allowed employers to mandate workplace activities without paying their employees for time spent performing them. The Act did so by declaring that employees could only be paid for “principal activities”. Principal activities were defined as those performed for the direct benefit of the employer. The Act required employers to pay their employees for performing principal activities regardless of where the work was performed, thus omitting details about when the work was performed. This provided legal grounds for an employer to require a “principal activity” before or after the employee’s shift without pay.

In 2010, the Portal to Pay Act came under scrutiny when former Amazon warehouse employees Jessie Busk and Laurie Castro filed a class-action lawsuit against Integrity Staffing Solutions, the company that employs warehouse workers for Amazon. In the suit, the plaintiffs demanded that Amazon compensate their employees for the time spent “waiting in line” for mandatory security checks. According to the plaintiffs, the security screenings took roughly twenty-five minutes per day. Lawyers at Amazon refuted the claim, stating that it was an exaggeration of security screening length. Amazon’s legal counsel informed the Supreme Court that their universal security screening system takes 90 seconds on average, a claim contradicted by the plaintiffs and another group of Amazon workers in California, who filed a similar lawsuit and won against Amazon. Four years later, the Supreme Court ruled against Castro and Busk because the FLSA does not define the act of waiting in lines as “integral and indispensable” to principal activities.

The phrase “integral and indispensable” came from the Supreme Court ruling in Steiner v. Mitchell, where the term was defined as an activity intrinsic to the employee’s principal activities. Typically, a court defines “intrinsic” activities as those relating to an employee’s productive work rather than activities required by the employer. How can an employer be required to pay their employee for activities that benefit their corporation while not paying them for work they were not hired to perform? In this instance, the security screenings were for Amazon’s benefit, but workers were not specifically hired to perform this work. Clearly, the Portal to Portal Pay Act holds an inherent contradiction. This court case clearly demonstrated how multi-billion dollar companies like Amazon can capitalize on loopholes in legislation favoring employers to withhold compensation from their employees. Ironically, an amendment to the Fair Labour Standards Act is anything but fair to the people putting in the labor. 

Ultimately, the Supreme Court ruled that the time the plaintiffs spent undergoing the mandatory security screening would only be compensable if it directly related to their principal task of packaging warehouse items. This decision raises questions about the extent to which the FLSA protects employees. In its current form, the FLSA can be taken advantage of by companies lacking robust ethical standards who are single-mindedly pursuing capital gains. Another way of understanding this case is by considering that employees cannot leave their place of employment at the end of their shift if they do not complete the security screening. If they refuse to complete it, they cannot return to work the next day to perform their principal task. How is a task integral to employees maintaining their employment not a principal task? The Supreme Court’s ruling in Integrity Staffing Solutions vs. Busk begs a reconsideration of how we define a “principal task.” 

All in all, the coronavirus pandemic has shown us that companies like Amazon are essential for fulfilling our most basic needs. With the increase in demand for warehouse workers as a result of the pandemic, it is more important now than ever to ensure they are protected by ethical labor standards. That said, the Portal to Portal Pay Act does not establish ethical bounds that employers are bound to follow. For now, we must clearly define what it means for an activity to be “integral and indispensable” in terms of whether such an activity allows the employee to perform principal activities. 

Companies operating in a capitalist economy cannot be trusted to look out for their employees’ well-being — it is the job of the government. The impetus for the Portal to Portal Act and Amazon’s Supreme Court victory demonstrate that the Act protects employers rather than employees, and condones uncompensated labor by the working class for multi-billion dollar corporations. It’s about time legislators confronted exploitative workplace practices and put the fair back in the Fair Labor Standards Act. 

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