NLRB Extends Deadline For Public Comments On Joint-Employer Standard

Volume: 17 | Issue: 20
October 24, 2018

On September 19, 2018, a federal circuit court ruled that time spent by hourly employees waiting for and undergoing a mandatory security screening was compensable time under Nevada wage and hour law. The court ruled that this time constituted “work” under Nevada law and that the Nevada legislature had not adopted the federal statute that excludes such postliminary activities from the compensation requirements of the Fair Labor Standards Act (FLSA).

The plaintiffs in this class action case were employed by Integrity Staffing Solutions, a company that provides warehouse labor services to at fulfillment centers in Nevada and Arizona. To discover and deter theft, the employees were required to undergo daily security clearance checks at the end of ea ch shift and before their lunch period. They alleged that the security clearance checks could take 25 minutes and that they were not compensated for this time in violation of Nevada law. They further alleged that because they had to undergo security chec ks before lunch, they were not given a full 30 – minute meal period as required in Nevada.

The plaintiffs originally alleged violations of Nevada and federal law. Their federal claims under the FLSA were ultimately rejected, however, by the U.S. Supreme C ourt in 2014. The Supreme Court held that the post – shift security screenings were excluded from compensable time as postliminary activities under the Portal – to – Portal Act, which was enacted as an amendment to the FLSA.

The U.S. Court of Appeals for the Sixth Circuit then analyzed the plaintiffs’ remaining and amended claims under Nevada law. It explained that under the Nevada Administrative Code, “hours worked” includes “all time worked by the employee at the direction of the employer, including time w orked by the employee that is outside the scheduled hours of work of the employee.” The court ruled that the security screening constituted work under Nevada law because it was required by the employer and was solely for the benefit of the employer and its customers. The court further determined that Nevada’s legislature had not adopted the federal Portal – to – Portal Act’s exclusion for preliminary and postliminary activities. As such, the plaintiffs’ class action lawsuit under Nevada law could continue de spite its failure under federal law.

The court also ruled in favor of the plaintiffs’ Nevada meal period claim, finding that the employees were not given an uninterrupted 30 – minute meal period because the time spent undergoing the security screenings be fore their meal period was “work.”

Although this decision in Busk v. Integrity Staffing Solutions, Inc. is from the Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Michigan, Ohio and Tennessee), it is still very important because it broadly interprets Nevada wage and hour law as being inconsistent with federal law. A federal or state court judge in Nevada is not required to follow the Sixth Circuit Court but could find the decision persuasive. Hopefully, the Nevada bench will realiz e that the Sixth Circuit’s analysis of Nevada law is incorrect and agree with the dissenting opinion that Nevada law mirrors the FLSA in this area.

If you have questions about this decision or the issue of preliminary and postliminary activities, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

Subscribe to the KZA Employer Report