Home / General / Panel Of Ivy League Graduates Determines That Wage Laborers Should Perform Required Tasks For Employers Without Compensation

Panel Of Ivy League Graduates Determines That Wage Laborers Should Perform Required Tasks For Employers Without Compensation


Earlier this year, I argued that 9CA was right to interpret the Fair Labor Standards Act as requiring employers to compensate employees for mandatory security checks. This being the Roberts Court, it took them less than two months to unanimously conclude otherwise. The Sotomayor concurrence (joined by Kagan) suggests that the Obama administration siding with the employers helped foster the unanimity, although the workers were obviously drawing dead when it comes to securing a majority.

This is a statutory interpretation case, so Congress could step in and protect the worke….sorry, probably too soon for black humor.

…[Erik] It’s also worth noting how pervasive this sort of unpaid labor was in the early 20th century and it’s centrality to union campaigns at that time. The Triangle workers had to go through these checks to make sure they weren’t stealing. Loggers had to walk from the logging camp to the logging site without pay. Miners had to timber their own mines so they wouldn’t collapse on them–on their own time. All of these workers fought to end these injustices through their union campaigns and union contracts. Reinforcing the ability of employers to force workers to do things like this without pay is a real step back toward those principles of the Gilded Age. That it is a 9-0 decision really reinforces how far the ideology of employer domination over workers has come in this country and how far we have to go to turn this nation back toward one where workers and their time and their dignity is respected.

…[SL] Noah Feldman:

But there’s still something fundamentally wrong with the court’s formalistic reasoning. The trouble lies in the logic of defining “principal activity” as though it were some abstract philosophical question about the essence of the warehouse employees’ job.

In reality, the “principal activity” is the job as defined by the employer. Amazon need not define the job to require security screening, because of course you can work at a warehouse without stealing anything. But once the employer says that the job can only be performed if you get screened, it’s redefining the principal activity from “warehouse work” to “warehouse work including screening.”

Compare the court’s examples of security gear. You don’t work at the chemical plant in order to wear protective gear — it’s just necessary if you want to do the job safely. Similarly, you don’t need to be screened to fulfill orders in the warehouse — it’s just that it’s necessary (according to Amazon) if the job is to be performed profitably.

Ditto for knife sharpening. You can cut meat with a dull knife but it reduces employer’s profits if you do. An activity included in the job as part of the employer’s profit motive should count as a principal activity.

The court’s liberals should see this. They should have looked at the idea of “principal activity” in functional, economic terms — not like a problem in pure definition, but like a problem in the real world.

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