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Wage Theft and the Supreme Court

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This amicus brief is not one of the Obama administration’s better moments.

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  • Grumpy

    Another distinction in the 11th Circuit case is that Everyone,* employees and customers alike, (maybe not certain law enforcement) must go through the security checkpoints.

  • Joe_JP

    The justices’ reactions, I know “fwiw,” to the employees’ argument was somewhat promising at the end. Glancing at the brief, the argument made by the government is credible, if unfortunate. The test “integral and indispensable” sounds high to meet but in fact it would seem security procedures like this would meet it.

    • bizarroMike

      But they aren’t “security for safety” checks, they’re anti-theft checks. While Amazon does indeed have a interest in the checks, no one else does. The workers should be paid for their time during them.

      • Joe_JP

        Okay. Yes, “security” here was in regard to theft. As to your point, wouldn’t the checks also guard against theft of fellow employee stuff?

      • Jackov

        The Labor Department is stating that anti-theft checks are similar to security checks. It and the administration likely feel this could be a giant hassle if the plaintiffs win since there are almost 3M federal employees plus various contractors many of who go through security everyday.

        Some highlights from the Labor Department’s amicus brief:

        Such searches are similar to other common security searches performed at the entrances and exits to employers’ premises which have not been found to be compensable under the FLSA and Portal to Portal Act.

        Others also involved exit searches, such as when workers exited a nuclear power plant, an Air Force base, or a mail-sorting facility.

        Nor does the location of petitioner’s screenings
        at the exit but not at the entrance), or one of their alleged purposes (anti-theft), distinguish them for present purposes from other common security searches.”

        By the same token, an entrance search may, like an exit search, be intended to prevent loss of the employer’s property by intercepting items that could be used to damage the premises or inventory through acts of vandalism or sabotage rather than asportation. There is accordingly no clear-cut distinction—either in terms
        of purpose or effect—between petitioner’s screenings and those that are routine at countless government and private-sector buildings.

  • CrunchyFrog

    But … but … but … he’s the most progressive president since Jefferson!!! And he’s exactly what we should have expected when we elected him. And green lantern.

    • joe from Lowell

      Roosevelt, Yep, and Yep.

      Did you have a point, or is this just how you work through your frustration at constantly losing arguments about Naderism?

      • Malaclypse

        My lasting regret from 2008 was not stockpiling these.

        • joe from Lowell

          You know what’s funny, Mal?

          The threads below stories about positive things done by someone in the Obama administration don’t generate these childish “But but but…” comments.

          Nobody feels the need.

          I’m not sure whether this reflects the different personality types that end up as Obots vs. Baggers, or just the argument being so close to settled favorably for one side.

      • CrunchyFrog

        The Point: Somewhere in between the extremes of “Obama is worse than Nixon” (FDL view) and “Obama has been a wonderful progressive President” is a rational assessment that while Obama has accomplished some good things for progressives he’s also been a disappointment on others. And sometimes the accomplishments and disappointments are in the same topic area, such as the environment.

        The problem is when you try to advance this point you are almost invariably accused of holding the FDL view (note the mention of Nader above and Obots/Baggers below).

        • NonyNony

          The problem is that when you say the following with a mocking tone:

          But … but … but … he’s the most progressive president since Jefferson!!!

          What you’re mocking is the fact that he actually HAS BEEN the most progressive president this country has had since Johnson. His accomplishments have been far more progressive than either Clinton or Carter were – our two previous Democratic presidents who might have a claim on that title.

          This is possibly an indictment of the country, but it isn’t actually an indictment of Obama. Who has actually governed almost exactly as he said he was going to govern when he ran in ’08, modulo the fact that he didn’t realize exactly how apeshit the Republicans would actually be during his time in office.

          • jroth95

            Go look at Scott’s phrasing on the last iteration of this discussion (in the context of the Sawicky critique of Krugman), and tell me that he’s taking a “tallest midget” line on Obama (which is exactly what “more liberal than Clinton or Carter” is).

            When Scott is kicking left, he always takes a line that, while only a moron could have possibly believed in 2008 that Obama was anything but a centrist Dem*, he has always and everywhere been undermined by his weak allies and staunch foes in Congress.

            But the point of stories like this is that, every time Congress is irrelevant, Obama takes actions that are not remotely near the leftward limits on his power. Friends of mine involved in state-level environmental bureaucracy have heard crappy things about Obama on those issues since nearly the beginning. I’m sure there are individual actions that have been left of center, but they’re clearly balanced – and probably outweighed – by hard right actions like this.

            And it doesn’t seem tenable to claim that Obama must be pushing up against the leftward limits of Congress on Congressional issues when he doesn’t even see the leftward limits on Executive issues. It’s one thing to excuse a college team for getting beaten by an NBA team, but when that college team barely defeats a high school team, maybe one shouldn’t constantly refer to them as the greatest college basketball team since UCLA in the ’60s.

            *and it’s true, his slogan of “A New DLC for 2008” should have been a clue.

            • joe from Lowell

              I’m sure there are individual actions that have been left of center, but they’re clearly balanced – and probably outweighed – by hard right actions like this

              So, you don’t actually know enough about Obama’s performance to make a confident statement, but they’re “clearly” balanced or outweighed by the segment of total Presidential actions that come to your attention through blog posts that complain about him.

              You know who thinks your certainty that Obama’s positive actions on labor “are clearly balanced and probably outweighed by hard right actions?”

              Labor, who pay a great deal more attention than you do.

        • joe from Lowell

          Oh, I see. The point of “But … but … but … he’s the most progressive president since Jefferson!!! And he’s exactly what we should have expected when we elected him. And green lantern.” was to get people to think about a rational middle ground.

          The problem is when you try to advance this point you are almost invariably accused of holding the FDL view

          Yes, imagine that.

        • joe from Lowell

          The problem is when you try to advance this point you are almost invariably accused of holding the FDL view

          The post, written by the most prolific political blogger on the site, reads in its entirety, “This amicus brief is not one of the Obama administration’s better moments.”

          That is to say, it consists of an expression of disappointment in one of the Obama administration’s actions, while putting into a context of there being better actions.

          Zero people called Scott a firebagger for making this claim.

          You weren’t calling for a rational middle-ground assessment. You saw one, and you bitched about it.

          You weren’t upset by a polarized tendency in the discussion of Obama’s accomplishments; you set out to polarize it as much as you could. Again, “But … but … but … he’s the most progressive president since Jefferson!!! And he’s exactly what we should have expected when we elected him. And green lantern.”

          And when called on it, you offered a defense that is disproved by the content of the thread your’e in.

  • divadab

    The Obama Administration has been absolutely consistent – corporate interests trump everything else. In this the SUpremes concur.

    You may think this case is not one of Obama’s better moments but he begs to differ – he’s playing the tune they paid him to play.

    This is why I just shake my head at the momentous stupidity of anyone who opines that “Obama is a marxist” – sure right – Obama the most reliable corporatist to occupy the WHite House ever. More reliable than Clinton or even GWB.

    • Bruce B.

      Ledbetter and non-discrimination requirements on contractors were corporate interests that trump everything?

      • jroth95

        As if he would have vetoed Ledbetter?

        Pelosi passed it, Obama was willing to sign it. Go him, I guess.

        Same deal with ACA, incidentally – his chosen Chief of Staff wanted to punt on it, and it was only Pelosi fighting for it that got it passed. I’m sure there’s a good reason that someone who knows a lot about poll sci would elide that fact.

    • The coal industry

      Say what?!

      • divadab

        slightly regulating the most egregious coal industry practices as a sop to the environmentalists makes Obama a marxist?

        • joe from Lowell

          slightly regulating

          Yeah, no.

          You clearly don’t have the foggiest idea what you’re talking about.

    • joe from Lowell

      I can’t wait for your explanation for why the CFPB is absolutely consistent with corporate interests trumping everything else.

      • divadab

        more faint regulation of the worst actors. next, full collectivization!

        • joe from Lowell

          Oh, how I love this game!

          “Why don’t Muslims ever denounce terrorism ever?”

          Uh, they do. Like here and here.

          “Yeah, well, why don’t they do it more?

  • David Nieporent

    Your argument — ” If tasks required by the employer for the employer’s benefit are not considered ‘integral’ to the ‘principal actives’ of job, that would produce plainly illogical and unfair results.” — is mistaken; it reads the Portal-to-Portal Act out of the law. That may be a good idea as a matter of policy — it might be less socially wasteful to simply require this type of time to be compensable than to litigate the issue over and over again — but this isn’t the place to be making policy.

    Tasks that aren’t required by the employer for the employer’s benefit are never compensable; the whole point of the Portal-to-Portal Act is to exclude some tasks that are required by the employer from coverage. That doesn’t end the question, but it illustrates that your analysis is stopping in the wrong place; “integral and indispensable” means more than simply “required by the employer for the employer’s benefit.” One might try to construct arguments why the time should be compensable, but it’s hard to draw a line between this time and the time for other checkout procedures that clearly wouldn’t be compensable.

    (The argument about mowing the lawn is a complete red herring, because if the employer required that, it would be a principal activity.)

    Moreover, while I certainly agree with you that the airport screening case (Bonilla) is distinguishable because the screening wasn’t required by the employer, the government’s brief did not rely upon that case; it cited it as one among many. It mentioned, for instance, a prison case where the employer (the Federal Bureau of Prisons) did require the screening, as well as cases involving air force bases, DHL, a power plant, and a chicken-processing plant.

    • Joe_JP

      long time no see!

      • rea

        No flounce is forever on the Internet.

    • Malaclypse

      A just God would smite someone for making this argument during a break from billing time in 6-minute increments.

  • Bruce Vail

    At the risk of descending into conspiracy-mania, does it occur to anyone (other than me) that the W.H. wanted to do a favor for Amazon on this case, and that they don’t give a shit about what labor law says?

    • joe from Lowell

      Why are we jumping directly to the White House?

      Why is Eric Holder a hero on civil rights, but the White House is behind this brief?

      • Bruce Vail

        Eric Holder is not a hero on anything. And what’s the difference between Holder and the WH anyway?

  • grouchomarxist

    Regardless of where Obama falls on some most/least progressive scale, it doesn’t seem so very unrealistic to expect that a Democratic president should abide by the same precept as doctors, that is: first, do no harm.

    Like Scott, I don’t see why the administration felt it had to file an amicus brief for Amazon in this case. Or rather, the reasons I can see are basically corrupt. You can debate the legalities of it all you want, but those workers — you know, the people who’re supposed to be prime Democratic voters — will rightly see what Amazon’s doing as theft of their time. And they’ll remember whose side this most progressive administration was on. And by extension, his party.

    It’s just no longer possible to deny there are multiple areas where the Obama administration’s actively sought to make a shitty status quo even shittier. Whether it’s done out of philosophy or perceived political necessity is irrelevant. It demoralizes potential voters and the activists Democrats depend on to get them elected. Scolding them for being such naïve children as to put faith in a politician’s promises sounds way too much like “You fucked up: you trusted us.”

    And it becomes particularly offensive in the light of a campaign that made such a big deal about hope and change.

    If almost all you’ve got to offer is fear of the other tribe, you’d better be aware that has big limitations as a motivator. Especially in the long run, among people who aren’t political junkies like the regulars here.

  • David Nieporent

    Perhaps more importantly, this case helps illustrate how unhelpful and misleading the “wage theft” label is, even if it makes good political rhetoric. I see plenty of wage theft out there — employees who work 70 hours a week for $400, employees who have their tips skimmed, employers who alter punch clock records and delete employee time.

    But that’s not this case. This is a case about a good faith dispute about whether time is compensable. (Some judges feel one way, some judges and the Department of Labor feel another way.) That’s not “wage theft.” That’s a legal dispute.

    • sanity clause

      Maybe there’s a legal dispute, but the thing is, if there’s two sides to a legal question, then you can decide which side to argue on the basis of what is morally right.

      And there’s not two sides to the question from a moral standpoint. Amazon is requiring its employees to hang around after they’ve clocked out in order to undergo a procedure that benefits only Amazon – not the employees, not the public health and safety, just Amazon.

      Amazon is depriving its employees of a portion of their nominally free time without recompense. Whatever that may be from a legal standpoint, morally it is stealing.

      The only excuse for the Obama Administration to take the other side of this case would have been if the legal case were a slam dunk for Amazon, which it clearly isn’t.

      • burnspbesq

        Two common errors in one post.

        First, you’re either disregarding the law entirely, or you’re pretending that the law must be what you think it ought to be.

        Second, you’re proceeding from the idea that litigation is the best (or perhaps even the only) way to achieve social change.

        The Portal-to-Portal Act is a statute validly passed by Congress and signed by President Truman, and it says what it says. The contemporaneous DOJ regulations were adopted in accordance with the Administrative Procedure Act, and would absolutely withstand scrutiny under Chevron. The employees are going to lose, and they would have lost even if the Solicitor General hadn’t filed an amicus brief.

        I happen to agree with you that the likely result in this case is bad policy. Unlike you, I know what has to happen in order for the bad policy to be replaced by good policy: get out the vote, get Democratic majorities in both houses of Congress, and get them to revise or repeal the Portal-to-Portal Act.

        If you’re unwilling or unable to undertake the heavy lifting to get this done, I am not interested in hearing you whinge.

  • sanity clause

    Scott, I’ve got a serious question about the legalities. I read a chunk of the Solicitor General’s brief, and while I don’t have it handy, I gather that the key legal question is whether a preliminary or postliminary activity such as this should be counted as work is whether it’s integral and indispensable to the principal activities of the job.

    (That’s probably a hash of a summary; feel free to tweak as needed.)

    Reading the brief, it seemed to me like there were two possibilities:

    1) That anything your employer specifically requires you to do, and will penalize or fire you if you don’t do it, is ‘integral and indispensable’ to your job; or

    2) The courts would have to get into the business, in a big way, of deciding which parts of your job are its principal activities, and which are peripheral.

    Because if your employer can tell you to do stuff, then not pay you for it because it’s not integral or indispensable to your job’s principal activities, then an employer can just push a significant chunk of your job outside of your regular hours, as long as it’s activities that aren’t your principal activities as an employee, or integral to those principal activities. And you’d have to do all that for free.

    Am I missing something here?

    • David Nieporent

      #2 is closer to accurate, but what you’re missing is that this issue only comes into play at the beginning or end of one’s workday, because of the “continuous workday” doctrine. That is, basically, once you start your principal activities and before you finish, everything you do for your employer is compensable; the preliminary/postliminary issue doesn’t come into play, and there’s no inquiry into whether it’s integral and indispensable.

      Also, don’t get too hung up on “principal” vs. “peripheral”; to understand what counts as uncompensable preliminary/postliminary activities, think of examples such as changing into or out of a uniform (which may or may not be), walking from the front door to your workspace (or back), checking in or out, etc. In other words, not really something most people would describe as “work” at all.

      “Regular hours” aren’t relevant; the issue is whether it’s (a) a principal activity, in which case it’s always compensable, and (b) if it’s not, whether it’s so closely related to a principal activity — such as turning on machinery or putting away tools. If it’s a “significant chunk of your job,” it’s virtually always going to be a principal activity.

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