Court Finds Nevada Law Requires Employer To Pay Employees For Time Spent On Security Screenings

By Kamer Zucker Abbott

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 each 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 checks 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 Court 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 worked 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 despite 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 realize 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. 

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