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Putting Off-the-Clock Work Back on the Clock?

The Huffington Post The Huffington Post 16/11/2015 Rebecca Smith
AMAZON WAREHOUSE CALIFORNIA © ASSOCIATED PRESS AMAZON WAREHOUSE CALIFORNIA

Workers at a California Amazon warehouse recently announced a $3.7 million settlement in a wage theft claim. Approximately 33,000 workers will be compensated for time spent going through security screenings at the end of their shifts (about twenty to thirty minutes a day). While they celebrate this victory, the federal judge in another California case ruled that Apple did not have to pay its retail workers for time spent going through security screenings. These Apple employees will have to keep working for free for at least some portion of their day.

Why the discrepancy? Judges are tying themselves in knots over what constitutes "work," even as more and more employers are requiring workers to wait in line at the end of their shifts while a manager combs through their backpacks and handbags.

The Supreme Court's ruling in the Integrity Staffing v. Busk case earlier this year contributes to the confusion. The federal minimum wage law has a provision that employers don't have to pay for time at the beginning or end of the day unless the task is integral to an employee's main job. The Court had ruled in earlier cases that meatpackers who sharpened their knives before starting work or battery plant workers who took showers to remove chemicals should be paid for that time. But in the Integrity Staffing case, the Court said that under federal law, workers at a Nevada Amazon warehouse who spent as much as 25 minutes a day waiting to go through security checks were not entitled to pay for that time.

Most people -- and likely most retailers -- would agree that preventing employee theft is essential to their bottom line. Most of us would not consider waiting in line at work to be screened as "free time." We'd rather be using that time to pick the kids up from daycare, run to the bank or get to class. But the Court said that we can be required to donate that time to the company, finding that the security screenings were not "integral" and "indispensable" to the employees' job duties.

Pundits predicted that the Integrity Staffing case would breed all sorts of mischief by employers, and they were right. Some judges have taken the Supreme Court ruling to almost ludicrous extremes. For example, most of us would agree that an essential part of work in a hospital is to avoid hospital-acquired infections by keeping everything scrupulously clean. Since the Supreme Court's green light, a District of Columbia judge held that the 1 to 3 hours a week spent by hospital employees to spot-clean, launder and iron their uniforms was not "work" under the federal minimum wage law. In Alabama, the court held that workers at a nuclear plant required to walk to and wait in line for radiation screening weren't "working" within the meaning of the law. Isn't safety of the utmost importance while working at a nuclear plant?

In the Apple case, the judge applied California law to hold that Apple didn't have to pay workers for the security screening time. Their reasoning? Workers could always choose not to bring a purse, backpack or briefcase to work. What kind of choice is that? You can avoid donating time to the company -- but only if you decide not to bring your lunchbox to work or a bag to hold essential personal items.

The U.S. Supreme Court holding is headed in the wrong direction -- especially given that our low-wage economy is suffering while companies like Amazon and Apple are exploding. Amazonposted earnings of $25.4 billion in the third quarter of 2015. Apple announced revenues of $51.5 billion this year, with a profit of $11.1 billion this past quarter. Meanwhile, wages for the rest of us remain flat, with retail employees losing 5 percent of real wages in the years 2009 to 2014.

Industry workers at Amazon also hold some of the lowest-paid, most dangerous jobs our country has to offer. In both Amazon cases, the workers were temped out -- that is, ostensibly employed only by staffing firms -- even though they worked in Amazon warehouses moving Amazon goods. Temporary workers in materials moving jobs, on average, earn around 20 percent less than jobs in the industry as a whole. These workers can't afford to lose up to a half hour of pay every day.

The U.S. Department of Labor can fix this and restore some meaning to our minimum wage laws, which are already so outdated that today's minimum wage is worth 30 percent less than it was 40 years ago. Along with its efforts to raise wages for home care workers and modernize the rules for overtime, DOL should take a look at its rules on working hours and return that lost half hour of pay to workers.

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