Integrity Staffing Solutions, Inc. v. Busk – Oral Argument – October 08, 2014

Media for Integrity Staffing Solutions, Inc. v. Busk

Audio Transcription for Opinion Announcement – December 09, 2014 in Integrity Staffing Solutions, Inc. v. Busk

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Case 13-433, Integrity Staffing Solutions v. Busk.

Mr. Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court:

Going through security as part of the egress process is a classic postliminary activity that is non-compensable under the Portal-to-Portal Act.

It is materially similar to the process of checking out at the end of the day or waiting in line to do so, which is a quintessential postliminary activity under the Act.

The Ninth Circuit erred in treating this time as integral and indispensable to a principal activity and Respondent’s position that the time is compensable without regard to whether it is an integral or indispensable activity is more problematic still.

Elena Kagan:

Mr. Clement — excuse me — can I give you a hypo?

Suppose that there’s an employer with cash registers, and there’s a very extensive process for closing out the cash registers, and that extensive process is to protect against theft.

If it weren’t for that concern, you could close out a cash register much more quickly.

Or the same for bank tellers or the same for casino dealers, you know, that there’s, like, a 20-minute process which is essentially an antitheft security process.

And it happens at the end of the shift when the cashier goes off duty.

What’s the difference between that case and going through security in — at Amazon?

Paul D. Clement:

Well, I think one difference is not — I’m not crystal clear that that time would not be non-compensable because I think that’s sort of the winding down period, which is, I think, with — at least potentially within the ambit of preliminary and postliminary activities.

Elena Kagan:

Do you know, by the way?

I mean, before you get on to that, do you know how that’s treated under the law?

Because I guess my assumption was that this kind of period would be treated as compensable.

But if that’s not right, let me know.

Paul D. Clement:

Well, it’s a problem with hypotheticals because I don’t know that that particular case has arisen.

I would think that would be actually a close question under the Act, because you do have this notion under the Portal-to-Portal Act that preliminary activities and postliminary activities are non-compensable.

And that, if you go back to Mt — Clemens, which used the term “ preliminary ”, that included the sort of wind up process and might well include this sort of wind down process at the work station.

Antonin Scalia:

Couldn’t you say that closing down the cash register is part of the job?

Paul D. Clement:

You could.

Antonin Scalia:

But getting yourself inspected as you leave — as you leave the place of business is not part of the job.

The other case where it’s just part of the job.

Paul D. Clement:

You could definitely say that, Justice Scalia, and I meant to get that as the reason–

Antonin Scalia:

You could not only say it; it seems to me true.

Paul D. Clement:

–Well, all the better, then, to say it, which is that this then becomes an easier case than that because it is part of the egress process, which is really the process of getting from your–

Anthony M. Kennedy:

But part of Justice Kagan’s hypothetical was that the 20 minutes or the 30 minutes is just for antitheft purposes.

Or I’ll interpret her hypothetical that way.

Just for antitheft purposes.

Anthony M. Kennedy:

Otherwise the cashiers — the records and so forth are turned up.

But just for antitheft protection, you need the 20 or 30 minutes.

If I can interpret the hypothetical that way, then it seems to me to be the same.

Paul D. Clement:

–I don’t think it’s the same.

I think it’s an arguable case under the Act that it still might be postliminary, but I think if you look at the cases that are out there, the courts have struggled a bit with the preliminary and postliminary activities that take place at the work station.

Where I don’t think they’ve struggled until the Ninth Circuit decision here is when you’re talking about time after you’ve left the primary work station and when you’re in the process of going to the doors.

Elena Kagan:

That would seem to make it depend on a compete fortuity.

You know, if I — if I have the cashier walk from the — the — with her tray to the manager’s station and do the same thing there on the way out the door, there would be one answer, and if she does it at the cashier’s station, it would be another answer.

And that seems not particularly sensible.

Paul D. Clement:

Well, there are some not particularly sensible results under the Portal-to-Portal Act because things do turn on where activities take place vis-a-vis walking time.

But I do think what makes this an easier case than your hypothetical is the exit screenings are a logical part of the egress process.

The other side in this case tries to raise the specter of lawn mowing being uncompensated and car washing being uncompensated, but no employer requires to you take a couple of swipes at a car on your way out the door.

Ruth Bader Ginsburg:

Mr. Clement, is it — is it irrelevant that we’re told here that because there are not enough security checkers and because all the shifts get out at the same time, what could be a five-minute process turns out to be 25 minutes, 25 minutes of the workers’ time, and 20 of those allegedly would not occur if the employer had — provided sufficient staffing.

Paul D. Clement:

Justice Ginsburg, ultimately, we don’t think that allegation is relevant here.

Now, it is just an allegation.

But the reason that I say that it’s not relevant here is twofold.

One, the one thing we know from the Portal-to-Portal Act and the pre-Portal-to-Portal Act cases is the pure length of time of something does not take it out of preliminary or postliminary activities.

If you go back to the Jewell Ridge case and look at Justice Jackson’s dissent, he makes crystal clear that the travel time at issue there was over an hour total, and nonetheless the clear import of Portal-to-Portal Act is to treat that hour as non-compensable time.

The second reason why I think this waiting time at the exit would be particularly a bad candidate for treating as compensable just because it was relatively long is because it’s not uniform 25 minutes.

And so it’s directly analogous to the time that was — people had to wait to go in and punch the clock at the pottery factory in Mt — Clemens.

And even the Mt — Clemens Court didn’t treat the waiting time to punch in as compensable.

And I think part of the reason was that it didn’t really make any sense.

It took eight minutes for everybody to get through, but that would create all sort of anomalies where the first person who got through would get treated — would get paid for eight more minutes than the last person that got through.

Sonia Sotomayor:

But that’s true — I’m sorry.

That’s true of a workday generally.

Some people have to close down the shop; other don’t.

So it takes the people who are closing down the shop longer.

I’m not worried about–

Paul D. Clement:

Could I stop you there, though?

I think that’s not really true of the compensable principal time of the workday after the Portal-to-Portal Act, which is whistle to whistle.

Sonia Sotomayor:

–Yeah, but could we start — could we start with that question?

Paul D. Clement:

Sure.

Sonia Sotomayor:

What’s a principal activity?

How is it defined?

Because pre or post-activity to a principal activity, you still have to define what a principal activity is.

And — and so I think, isn’t a principal activity work that benefits the employer in some way?

Paul D. Clement:

No, Justice Sotomayor.

And I think it’s important to get two concepts separate.

One is work under the Fair Labor Standards Act.

And for purposes of that, all you really do need is things that are required by the employer for the employer’s benefit that require a minimum amount of exertion.

That’s the test from this Court’s cases.

But principal activities is a separate and more demanding test under the Portal-to-Portal Act.

And the way I’d think about the statute is the Fair Labor Standards Act makes all work presumptively compensable.

And then only when you get to something that is arguably postliminary or preliminary do you have to ask a question that involves principal activities.

Because if you have compensable work and it’s not even arguably preliminary or postliminary, it’s compensable without regard to the Portal-to-Portal Act.

But when you get to the Portal-to-Portal Act, then you have to look, is this a preliminary and postliminary activity.

And if it is, then it’s presumptively noncompensable unless it’s integral and indispensable to a principal activity.

Anthony M. Kennedy:

Well, let’s — let’s take Justice Ginsburg’s hypothetical.

Let’s — let’s assume that it takes 25 minutes to check out and that it would be very easy for the employer to hire a few more checkers and make it 5 minutes.

Just assume that that’s the fact.

Why isn’t the long line in — caused by very few checkers for the benefit of the employer?

It’s for the benefit of the employer to hire fewer checkers.

Paul D. Clement:

It might be for the benefit of the employer in that set of circumstances, Justice Kennedy, but that doesn’t make it not postliminary activity and not compensable.

And if you look at the universe of all noncompensable time under the Portal-to-Portal Act, I think in every instance you could say if the employer only did more, he could reduce — he or she, it could reduce that time.

And so, if you go back–

Antonin Scalia:

He could move his plant, for example, to be closer to the city where the employees live, right?

So it takes him an hour to get to work.

It’s his fault that it — that it takes them an hour instead of just 10 minutes.

He should move his plant.

It’s just a matter of cost, right?

Paul D. Clement:

–That’s exactly right, Justice Scalia.

And you can ticket from the commuting time to the commuting time internally if you go back to those trams in the — in the coal mining cases.

If the employer added more trams or more tram drivers, presumably, that travel time would be reduced.

Anthony M. Kennedy:

Is it — is it always irrelevant to the analysis that it’s for or not for the benefit of the employer?

Paul D. Clement:

It is irrelevant for the Portal-to-Portal Act analysis.

And as I said, it’s not irrelevant to the analysis at all because the fact that it is for the employer’s benefit is part of what makes it compensable work presumptively or work under the Fair Labor Standards Act.

But when you get to applying the Portal-to-Portal Act, that is activity that even though it’s work, even though it’s required by the employer, and even though it’s for the benefit of the employer, is nonetheless noncompensable by the terms of the Portal-to-Portal Act.

And if I could just continue the–

Sonia Sotomayor:

All right.

That’s — that’s not quite right, because if the employer requires you to put on a particular outfit that you can’t do the work without, we’ve said that’s compensable.

Paul D. Clement:

–I don’t think you have a case–

Sonia Sotomayor:

So — and — but donning generally isn’t, so I’m not sure quite how you can take out that element from this analysis.

Paul D. Clement:

–Justice Sotomayor, I don’t think there’s a case of this Court that says just because the employer requires something that would otherwise be superfluous that it therefore becomes integral and indispensable.

And so I would actually take–

Sonia Sotomayor:

I agree with you.

It can’t be superfluous.

It can’t be something that’s — for the benefit of the employee.

Putting on clothes to keep yourself from being splattered with a nonharmful substance is for the benefit of the employee.

But–

Paul D. Clement:

–But — but take something where a particular employer has an idiosyncratic view and actually wants their employers — employees to have a certain color smock or a certain piece of equipment that’s not actually particularly integral and indispensable to anything.

I don’t think anything in this Court’s cases would say just because the employer required it, it is therefore compensable.

And I think if you go back to the quintessential example of something that is postliminary and noncompensable, the time clocks, the checking out process, all of that is required by the employer and for the employer’s benefit.

And so I don’t think you can meaningfully distinguish the exit screening from those quintessentially postliminary noncompensable things.

Stephen G. Breyer:

Indispensable.

Hardly anything is indispensable.

Where — where does that word come from?

Paul D. Clement:

Well, the word comes from this Court’s decision in Steiner and it would — it comes from the Labor Department’s–

Stephen G. Breyer:

The Labor Department says — they’re here saying it’s the correct test, which I think is — well, perhaps more important, is there a close and direct relationship?

Which I understand a little bit better.

Isn’t that labor?

Paul D. Clement:

–That’s their gloss on what integral and indispensable means.

Stephen G. Breyer:

Oh, I see.

Paul D. Clement:

And what I — what I would say–

Stephen G. Breyer:

Well, I mean, it can’t literally mean indispensable, can it?

Because then anything at the end of the day, they’re probably five ways of doing it.

The cash registers, you can do it this way.

You can do it that way.

I mean–

Paul D. Clement:

–Well, I — with all due respect, Justice Breyer, I do think the test should be indispensable.

And I do think there are plenty of things–

Stephen G. Breyer:

–If I can think of a way at the end of the day that the employer could have done it by saving a little more time or something like that, then it’s postliminary.

Paul D. Clement:

–Well, if it’s otherwise postliminary, it doesn’t come outside of that exception and become a principal activity.

And I think two points to make here.

One is, you know, I think the knife sharpening in King Packing, for example, really is indispensable.

You can’t run a butchering operation without sharp knives.

I think you can perfectly well run a warehouse facility without egress security.

So I think these are different.

Elena Kagan:

Actually, Amazon, I don’t think you can.

I mean, what makes Amazon Amazon?

It’s a system of inventory control that betters everybody else in the business.

And what’s really important to Amazon is that it know where every toothbrush in the warehouse is.

And that’s just as integral to what Amazon does and to what it requires its employees to do as, for example, the — I’m going back to my hypos — but the person who closes out the cash register, the person who closes out the bank teller operation, is that this is sort of a necessary part of what — of what the — the folks who do all the stocking and the unshelving and shelving do at Amazon.

Paul D. Clement:

Well, I guess I would beg to differ, Justice Kagan.

I think, certainly, everything in the Amazon facility is barcoded and the like, and everybody knows where everything is, but there’s always the possibility that somebody not barcode an incoming item at all and put it in their pocket.

Now, if they’re doing that, they’re not discharging their principal activities, and if they’re detected on the way out, I mean, that might help keep the next person on mission, but that doesn’t make it integral and indispensable to discharging the primary job duty.

Antonin Scalia:

I suppose that it is also necessary to Amazon’s business that it know how many hours each of its workers has worked, so it knows how much to pay them and doesn’t pay them more, right?

And — and yet, there’s no doubt whatever, is there, that punching in and punching out is not — is — is preliminary and postliminary, right?

Paul D. Clement:

I hope there’s no doubt about that, Justice Scalia.

And I do think that the exit security screenings are just the modern — modern analogue of that.

Not only do they both come at the employer’s insistence and for the employer’s benefit, but they also have this process of verifying that the employers are essentially behaving in an honest and — and — way.

Paul D. Clement:

It’s the same way as trying to ensure that a employee is not lying about having worked an eight-hour day.

You use the time clocks to verify that.

You also use the exit screening for that process.

And the other aspect of it that makes it so closely analogous is they are a logical part of the egress process.

They are part of getting you from your principal work station to the exit doors at the end of the day, classically postliminary activity.

If that’s not — if the Court is to treat that as compensable, then it’s not clear what’s left of the Portal-to-Portal Act.

The Portal-to-Portal Act was Congress’s judgment that these kind of preliminary and postliminary activities should not be compensable.

It would be perfectly rational to have a system where you compensated employees from portal to portal, and that’s basically the regime that this Court created in a series of cases culminating in Mt — Clemens Pottery.

But it’s just as clear that Congress reversed that result in Portal-to-Portal Act.

If I could reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Gannon.

Curtis E. Gannon:

Mr. Chief Justice, and may it please the Court:

The Portal-to-Portal Act generally accepted from mandatory compensation the activities that are associated with the process by which employees arrive on the employer’s premises at the entrance to portal and get to the place where they perform their principal work activities at the beginning of the day, and then the process by which they leave at the end of the day and get to the exits.

We think the security screenings here are noncompensable because they are postliminary activities, and they are not integral and indispensable to the employees’ principal work activities.

Ruth Bader Ginsburg:

You said in your brief that there are some security searches that would be compensable.

So would you tell us which ones are and which ones aren’t?

Curtis E. Gannon:

Well, I think you’re referring to footnote 18 of our brief, Justice Ginsburg.

Ruth Bader Ginsburg:

Yes.

Curtis E. Gannon:

And there we talk about the fact that the employer can’t just require lots of other things to be done at the end of the day and call those things postliminary.

I don’t think that we have any particular examples of searches in mind.

There aren’t cases that deal with compensable searches.

But I think the question there would be whether the activity has so fundamentally changed the nature of what’s going on that it no longer resembles the ordinary process of checking out.

The reason why we think–

Ruth Bader Ginsburg:

You can’t think of an example, then, where a security check, an exit security check, would be compensable?

Curtis E. Gannon:

–Well, I think it would probably have to be a type of search that is so dramatically different, more intrusive, more time-consuming, the search itself, not just the time waiting in line, that it’s fundamentally transformed the nature of the activity.

So I think to the extent that some of the examples that are suggested in the briefs, like drug testing, you could analogize that in some way to an anti-theft search.

One of the hypotheticals has to do with a person who works in a pharmaceutical manufacturing facility, have they taken the pharmaceuticals.

The employer may want to test them on the way out.

And I’d say that drug testing is not the type of thing that is normally associated with entering and leaving the property.

Curtis E. Gannon:

It’s not the ordinary course of checking in and checking out, waiting in line to do so, the types of things that the Labor Department was thinking about in 1947 when it adopted the interpretive regulation that gave those examples.

And I also think that drug testing is not the sort of thing that’s classically associated with the entrances and the exits.

It’s the sort of thing that is usually done somewhere else.

And that’s different from security and safety screenings, most of which I understand Respondents concede are not actually going to be compensable.

And so we think that those are the two reasons why in this case this looks like something that is both postliminary — it happens as part of a process of getting out, it is — it happens at the door, at the portal or near there — and it is not integral and indispensable.

It is different from the activities that were at issue in Steiner or in King Packing or in IBP, because the employees when they are on the work floor doing their job, surely they do have access to merchandise.

It is of course important to Amazon, as you pointed out, Justice Kagan, that they not take the merchandise.

Amazon and Integrity Staffing want to know where the merchandise is.

But the idea that this benefits the employer or is required by the employer isn’t enough to make it compensable because, as Mr. Clement was just saying, that’s the test for whether something is work.

That’s what was the test under Mt — Clemens, and Congress excepted from that a class of activities, preliminary and postliminary activities, that are noncompensable.

Travel time and preliminary and postliminary activities like time clocks punching in and punching out, that’s required by the employer.

It benefits the employer.

That’s not enough to make it compensable.

Elena Kagan:

But is the idea, then, Mr. Gannon, just — you know, it’s basically a door test?

I mean, portal to portal.

It might make sense just to have a door test, exits and entrances.

Curtis E. Gannon:

I think that it has — to be more precise about it, I think that canonically most of the activities are going to be associated with the process of getting in and out.

Those were the — those were the things that were at issue in the Portal-to-Portal Act cases that Congress was effectively reversing when it adopted the Portal-to-Portal Act.

And I think it’s the continuous workday rule that’s going to make it — it makes sure that it happens only at the beginning and the end of the day.

I think that, to be more precise about it, though, the way the statute is phrased, it talks about these being activities that occur before the principal work activities begin at the end of the day or after they cease.

Something isn’t preliminary if you’ve already started doing your principal activities and it’s not postliminary if you haven’t already ceased them.

So the question is whether this is itself a principal activity by virtue of being integral and indispensable and–

Anthony M. Kennedy:

Can we write this case without discussing whether or not this is for the benefit of the employer?

Or do we have to address that?

Curtis E. Gannon:

–Well, I think that it’s always going to be for the benefit of the employer if it comes up in the context of the Portal-to-Portal Act, because we wouldn’t be concerned about whether the exception–

Anthony M. Kennedy:

So you’re saying that is really not at all helpful or necessary for the analysis?

Curtis E. Gannon:

–I don’t think it is, because that’s the antecedent question about whether it would have been compensable under the FLSA.

If it doesn’t benefit the employer, if it’s not required by the employer, it wouldn’t have been work, you don’t need to decide whether it’s preliminary and postliminary and therefore excepted from the mandatory compensation requirement.

Anthony M. Kennedy:

So you can — so we assume that it’s for the benefit of the employer.

Curtis E. Gannon:

Yes.

Curtis E. Gannon:

I think that it almost certainly is always going to be for the benefit of the employer, just like time clocks are, just like you could say the requirement in Tennessee Coal and Jewell Mining, the mine cases, that employees were required to ride from the face — from the portal of the mine, down to the face where they are going to be working, they were required to ride in the ore skiff — in the ore skiff, and presumably that benefitted the employer for all sorts of reasons.

They didn’t have to make more room for people to walk.

They didn’t have to worry about employees getting injured by skiffs that were going by.

And that’s not enough to ensure–

Elena Kagan:

Can I give you a different hypo, which is similar to some of the ones that have been floating around in a brief, but it’s actually based on real life circumstances.

There was a judge ages ago in the Southern District of New York who had his clerks — all that they did was help him with his opinions and his cases and that was their principal activity, but had his clerks come early in order to cut his grapefruit and otherwise make breakfast for him.

And would that be compensable?

Curtis E. Gannon:

–Well, setting aside the question of whether the law clerks were covered by the FLSA to begin with–

Elena Kagan:

Yeah, yeah, yeah, yeah, yeah.

Curtis E. Gannon:

–I take the point that that would be compensable, and I think there we’re talking about a kind of activity that isn’t preliminary or postliminary.

We do think that those words have independent meaning.

As we discuss in our brief–

Stephen G. Breyer:

The one question I have for your side is this.

I would — perhaps no one else would, but I a pay a lot of attention to the Labor Department.

Curtis E. Gannon:

–So do we, Justice Breyer.

Stephen G. Breyer:

Yes, I understand that.

But this is a dismissal of a complaint and it seems to me normally what happens is you debate these facts on the summary judgment.

I don’t know if they want to introduce something else.

I mean, in my own mind, I can think of five things I’d like to know about the activity and about other activities and, you know, is it more like the cash register, is it more like this or that.

So shouldn’t we send it back so if they wanted to develop the record further, they can?

Curtis E. Gannon:

I think, as the facts are alleged here, we know enough to know that these activities are not–

Stephen G. Breyer:

No matter what?

I mean, suppose it turns out that the warehouse thing — you look all over the country and this kind of warehouse employee, of course they have security checks and they have a special kind of security checks, other people don’t have them.

This is just normal that a warehouse employee does have a security check at the end of the day, and, boy, it begins to look a little bit more integral.

It begins to look like part of the job, just as he has to put the books back on the shelf.

He has to put the books back on the shelf and he has to get a security check.

Curtis E. Gannon:

–Putting books back on the shelf, closing out the cash register, taking the cash car to the supervisor, all of those things we think are compensable.

Those are not–

Stephen G. Breyer:

Then what’s different about this?

What you do is you put it back on the shelf, you go get your security checked, and there we are.

Curtis E. Gannon:

–Because those are still the activities that the employee is paying you to perform, and so that is the job that you are doing.

You’re still handling the money, you’re still–

Elena Kagan:

I guess I just don’t understand that, Mr. Gannon, because, as Justice Kennedy said, the point of my hypo was that it’s not part of the job.

It’s actually an antitheft mechanism.

Curtis E. Gannon:

–But it’s part of the job because it’s things that have to be done in order to — I mean, the employer has set up the procedure in order to manage the cash.

The cash has to be taken somewhere at the end of the day.

When you’re doing all of that–

Elena Kagan:

The cash could be taken somewhere much more quickly and much more easily if the employer were not worried about the employee pocketing some of it, you know.

I mean, you could just put it in a big bag, versus going through this very, very careful sort of inventory control.

Curtis E. Gannon:

–I don’t think the purpose is enough to distinguish.

And we discuss at the end of our brief about how there are safety and security searches, that the purposes overlap a lot here, whether the employer is trying to protect its time when it requires somebody to do punching in or punching out or protect its property.

I think the purpose is very difficult to make that the distinguishing factor.

But there we think that those activities are still what the employer is paying you to do.

They’re not — when you’re done with the cash drawer, when you’ve turned in the cash and then you’re done, you’ve ceased your principal activities for the day, now you need to walk out the door.

And if at the door, they want to look in your purse, we think that that doesn’t transform the time it took you from being done with your job to getting off the property into being compensable any more than it would with the donning and doffing cases.

Once you had finished taking off the garb, you were done, and then if you still had to walk you weren’t getting paid.

In IBP, this Court held that when you were waiting in line to put on the equipment in the morning, if the employer decides that they’re just a Nervous Nellie and they want you to be wearing all sort of extra security equipment that nobody really thinks is important but the employer demands that you do, and they think it benefits them, then you’re going to have to get paid for the time it takes to put that on, but not the time you are waiting in line to do so.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Thierman.

Mark R. Thierman:

Mr. Chief Justice, and may it please the Court:

We agree that there are levels of analysis and the first level is, is this work; and under 785.7 of the regs this is work because it’s an activity required for the benefit of the employer.

Having said it’s work, the question then becomes, is it a principal activity.

Not whether it is integral and indispensable, but is it a principal activity, because we never get to integral and indispensable, we never get to postliminary and preliminary, if it is a standalone or a principal activity.

And to answer that question–

Samuel A. Alito, Jr.:

Just — before you get to that, to understand the structure of your argument, if we were to disagree with you on the question of whether it’s a principal activity that means you would lose this case?

You haven’t argued that this is integral and indispensable, have you?

Mark R. Thierman:

–The Ninth Circuit has taken the position it’s integral and indispensable.

We have not argued that.

We have argued that the Ninth Circuit test — there are two tests.

There’s–

Samuel A. Alito, Jr.:

Have you abandoned that argument?

Mark R. Thierman:

–No, I think we’ve basically put the argument in a different place.

Samuel A. Alito, Jr.:

Where in your brief do I find your argument on integral and indispensable?

Mark R. Thierman:

We adopt the same test as the Ninth Circuit.

We just say that it proves principal activity.

We don’t say it proves integral and indispensable.

So we have the same test–

Samuel A. Alito, Jr.:

So a principal activity is something that’s integral and indispensable and then a postliminary activity could be compensable if it’s also integral and indispensable?

Mark R. Thierman:

–No.

A principal activity is something that the employer tells to you do for the benefit of the employer that’s not carved out by one of the exceptions, the exceptions being travel under 254(a)1, checking in and checking out and–

Antonin Scalia:

Cutting grapefruit for the judge would be a separate principal activity.

Mark R. Thierman:

–It would, because the judge told to you do it.

John G. Roberts, Jr.:

Yes, but this is — no one’s principal activity is going through security screening.

The employer doesn’t hire somebody, I need somebody to go through employee screening.

He hires them to do something else and then the employee screening is certainly not principal.

Mark R. Thierman:

But no one hired the clerks of this Court to wear morning jackets, yet it is a requirement of the job.

Would they be — are they required to do it?

Yes.

If they are required to do it on site, that is you require the changing on site by the regulations, it must be compensable.

You could have waiters wear uniforms if you required–

Antonin Scalia:

I think you hire them to wear proper attire.

Of course, you do.

You could hire a policeman to wear police uniforms–

Mark R. Thierman:

–Then you hire warehousemen not to steal merchandise.

Antonin Scalia:

–No, that’s not part of their job as a warehouseman.

That isn’t what they are hired for.

Policemen are hired to look like policemen and act like policemen.

And people who argue for the Solicitor General are hired to speak like lawyers and dress like members of the SG’s office.

I think that’s the difference between a principal activity and something that’s postliminary or preliminary.

Mark R. Thierman:

Well, it depends on the view you take of their job, if you look at the tasks they are performing or do you look at their overall function.

Mark R. Thierman:

Their overall function is to move merchandise without losing it.

If they don’t — if they ship to the wrong address, if they drop it in the wrong bin and it can’t be received, it’s not there the next day they look for that particular item in that particular bin, then they haven’t done their job.

And if they steal, it’s the same thing.

John G. Roberts, Jr.:

Well then, I guess I don’t understand what “ principal ” means.

You’re saying everything that is related somehow to the job is principal.

I would have thought principal has to do with things that are more significantly related.

You would say, typically, if somebody asked what do you do, if you were one of these people, you would say, oh, I fill orders for Amazon.

I mean, it may be part of that that you go through security at the end of the day, but that doesn’t make it a principal activity.

Mark R. Thierman:

The term “ principal ” doesn’t mean that it’s overwhelmingly important.

It means it’s one of your job tasks.

And just like making the grapefruit–

John G. Roberts, Jr.:

Then I don’t know why don’t you say “ activities ” rather than “ principal activities ”?

Mark R. Thierman:

–The statute uses the word “ principal activity ”.

John G. Roberts, Jr.:

I know you say it because you want to fit under the statute, but I’m saying I don’t understand.

It seems to me you’re just saying anything that is required for the benefit of the employer is a principal activity.

Mark R. Thierman:

We are saying that anything that is required — a person is hired to do what they are told to do.

That’s your job.

It’s not whether it exists in some kind of abstract job function or abstract flow chart.

The worker isn’t sitting there deciding, well, gee, is this a principal activity?

John G. Roberts, Jr.:

The workers are told: You’ve got to check out.

It’s something they are told they have to do.

Mark R. Thierman:

That’s right.

John G. Roberts, Jr.:

And under your theory that would be a principal activity.

Mark R. Thierman:

No.

Workers are told they have to return their tools, which they have to pay for; they have to punch out or check out; and then after that, and 20 minutes after that, they have to be searched.

So the idea that this is just a part of checking out is wrong, factually, in this case.

It is also wrong that when you — for example, roll calls.

Roll calls for — are a checking in function, but yet because there’s more to it than just checking in it’s compensable, whereas just saying, hi, I’m here, is not compensable.

Antonin Scalia:

Just as the employer does not hire somebody to check in, that’s not the job.

I want to employ you to check in?

Antonin Scalia:

Of course not.

So also, an employer does not hire somebody in order to be inspected when he leaves.

I don’t see how you can call it a principal activity.

Mark R. Thierman:

If the employer–

Antonin Scalia:

And it’s not indispensable to the taking care of the material in the warehouse.

It’s indispensable to — it’s important to the employer and he requires it just as he requires punching in and punching out.

But that doesn’t make it part of the job.

Mark R. Thierman:

–It’s indispensable to keeping your job.

If you don’t go through the security–

Antonin Scalia:

Well, that’s true, but so is punching in and punching out.

Mark R. Thierman:

–And there is this carveout for checking in and checking out, which we acknowledge.

It is a separate, discrete function and it is a — it is not a work of consequence, which is actually the second part of the definition under–

Elena Kagan:

The other way to look at this is that the reason why checking in and checking out is not compensable is because it does have to do with this going in and going out.

You know, it’s all about ingress and egress, and that’s what the Portal-to-Portal Act was about.

And if I make you go through a security gate as part of getting out of a factory, then it just becomes part of this — the principal design of the Portal-to-Portal Act was about going in and going out and this is part of that.

Mark R. Thierman:

–But I can’t have an assembly line where you start at one end and at the end of the assembly line, you’re done for the day and say everything along the way since it leads to your exit is going to be a part of the egress process.

Stephen G. Breyer:

What you have here which you could address in this is — he’s quite right, Mr. Clement.

Steiner uses the words three or four times, the integral and indispensable, but they qualify activities that take place outside of regular work hours.

I think here it’s conceded that it takes place outside regular work hours, it’s indeed after checkout, etcetera.

So the question becomes integral and indispensable and they have gloss on that and so forth.

Okay.

So I’m in the situation probably I’d say go with the Labor Department.

They are the ones who are in charge of this.

And they are saying you lose.

They point to something in 1951.

And I have two questions.

The first one is, is there anything else you want to put in besides this very detailed complaint?

And the second question is, okay, why don’t you lose?

What am I supposed to do with that opinion?

It’s sitting there–

Mark R. Thierman:

It’s not reasoned.

It doesn’t–

Stephen G. Breyer:

–Well, that’s true, but it’s never seen in ad law in this area that — okay, you can cite Skidmore et cetera.

But–

Mark R. Thierman:

–They don’t even rely on it.

It’s not an interpretation of the regulations.

I think what happened is is the bundle–

Stephen G. Breyer:

–But they are telling us now.

Mark R. Thierman:

–They are telling us now, but I think it’s bundled.

The question is, do we bundle this process or do we unbundle it.

We say, just like the cashier — by the way, we represent a lot of employees who sue casinos for the fact that they punch out, go downstairs, count their bank and then tally up, it takes 15 to 20 minutes, and then they go out a special door for casino employees, and is all that egress or is that a separate act?

Stephen G. Breyer:

Well, the answer to the first question, which was yes or no, there isn’t anything else you want to put in the record.

You are perfectly content with our deciding this on the facts that are in the complaint?

Mark R. Thierman:

I would put in the record just what I just told Justice Kagan.

That is, that this is a discrete act.

This is not a wait — they punch out first.

They don’t punch out at the end.

They don’t punch out during.

They punch out — the checking in and checking out function is completely finished.

They hand in their tools.

They hand in, which they’re paid for because that the Department of Labor says you have to be paid for, and the regulations don’t — none of the briefs talk about the 7 — the 785 series of regulations which define work.

And the 785 series define work as basically when you’re under the control and doing what the employer tells you to do.

And there are–

Ruth Bader Ginsburg:

And how do you explain that you’re not compensated for the time you are on the line waiting to don your protective gear?

Protective gear, donning it itself, that’s a required part of the job, and you’re compensated for that.

But you’re not compensated for the wait to do that.

Mark R. Thierman:

–Because it’s a way in versus a way out.

You’re leaving.

So the continuous workday works in favor of the employee in this time.

The continuous workday starts at the donning part, it ends at the doffing part.

Mark R. Thierman:

And in the Steiner case and Alvarez the doffing, the wait to doff, was covered because it was part of the continuous work day.

It — it — so it’s the mirror image of when coming in.

We’re not saying they should get paid for waiting on line to come in.

We’re saying they should get paid waiting on line to be searched.

They are already checked out.

It’s to be searched, and drug testing is compensable.

When they send to you a physical to get drug tested or a physical to do a job, that’s compensable time.

John G. Roberts, Jr.:

All of this is subject to collective bargaining.

In other words, you’re sitting down and you say we want it to be $15 an hour and you’re asking for a dollar raise and you’ll say, look, one reason we should get it is because we have to wait a half hour to get out or whatever, and that’s — whether it’s compensable time or not, that can certainly be a factor that goes into the collective bargaining.

Mark R. Thierman:

Well–

John G. Roberts, Jr.:

This comes out because it’s after the fact.

And after it’s all taken place, you go back and say we should get — what are these, double damages or–

Mark R. Thierman:

–Liquidated damages are discretionary, it’s–

John G. Roberts, Jr.:

–But going forward, they can always say, oh, we’re not going — the court says we’re not going to get compensated for this time so we’re going to insist on a higher amount of the hourly wage for the 8 hours that we do get compensated for.

Mark R. Thierman:

–Well–

Elena Kagan:

Are these employees unionized?

Mark R. Thierman:

–These are non-union employees.

They are all non-union employees.

John G. Roberts, Jr.:

Well, a lot of the employees covered by this are union employees, right?

Mark R. Thierman:

Actually, the — the Petitioner makes a big deal about this avalanche of things happening, but so far out of the 7,000 or so FLSA work — lawsuits that are filed every — every year, there are only five or six defendants who have ever been hit with this in the last ten years.

And no, they are mostly non-union companies.

You are talking about 3.0, and the clothes changing is a separate exception.

But in fact, the reg on that says if it was required by law or the employer and it’s not covered by the union contract, then it is compensable.

So it is the requirement that the employer tell you to do it that, I think is the linchpin to make something a principal activity.

If the employer didn’t have a mandate, if the employer says to Justice Scalia, well, I don’t really care how you get here but you better show up at 8 o ‘clock, get here at 7:30, you can get here at 7:45.

You take the risk you’re going to be late.

That’s a different story.

That’s a different standard.

That’s the integral and indispensable.

Antonin Scalia:

What if the employer says I have to take a particular employer-owned trolley to get to the place where I work?

Mark R. Thierman:

It’s covered by a specific exception under the 254(a)(1).

It’s the travel.

Mt — Clemens was the furthest extension of work we have.

They rolled back Mt — Clemens.

They rolled back a part of Tennessee Coal, which was the travel time, but when they rolled back Mt — Clemens, they only rolled back a portion of it.

They rolled back the going from the portal to your work station part of it.

They didn’t roll back everything that was in Mt — Clemens.

Even though it’s in the briefs, I’m sure the Petitioner would not want to the de minimus rule to be eviscerated.

It is a rule for their favor.

That’s in Mt — Clemens.

There’s lots of stuff in Mt — Clemens that still survives on both sides.

But Mt — Clemens rolled back — was rolled back by the Portal-to-Portal Act by the concept of you’re on the property, you’re in the employ.

I mean, where — Nevada has one of the — is — actually has that kind of sense of employment as opposed to the Federal employment, which is a much more employee — employer directed.

You do what you’re told.

Your day starts when your first command comes down.

Here’s — the last command is to be searched.

And it doesn’t take 2 minutes; it takes 20 minutes, because they don’t want to open up more kiosks and — and — or use some kind of queueing theory and shorten the lines.

That’s their choice.

It’s also a way of enforcing a — a policy or a way of — there are other ways to make sure people don’t steal things.

They could use cameras.

They could use — they could use a tally.

They could make people stand by their bench at the end of the day and they go through every bin.

Certainly that would be compensable.

It’s — the fact is they chose this method.

It’s an employer’s choice to do it, because it’s the cheapest method to do it, to discourage employee theft.

And if the merchandise isn’t there at the — at the end of the day or the beginning of the next shift, you can’t do your job.

So in that sense, it is indispensable.

You need that merchandise not to be stolen so you can fill your orders.

But just the command itself, unless it’s a carveout, which we have a carveout for changing — for checking in, checking out.

We have a carveout for travel, community-type travel.

Mark R. Thierman:

It’s work because you’re told to do it and it’s not an employee’s position to say, gee, I don’t think this is work or I don’t think this is compensable.

They used the example of sneaking out the back door.

We don’t want employees to be going, oh, well, I’m not getting paid for this, so I’m going to sneak out the back door.

Now, when it’s a non-mandated — employer non-mandated task, then we have a whole set of different rules.

That’s when we use integral and indispensable.

Then we say: Is it necessary?

Is it indispensable?

Was he doing it for his own convenience or was he doing it for the employer’s because he couldn’t do the job without it?

If we have a situation where we’re — we’re told to do it and he doesn’t do it, he’s fired, I think that’s — that’s ipso facto indispensable to his job, whether it makes sense or not from the employer’s point of view.

I mean, employers make people do all kinds of things that don’t make sense.

Anyway, the fact is that there are lots of examples in the regs of things that are just not — that are not standalone jobs that are principal activities.

And if the — if the definition of a principal activity requires it to be related to something else–

Sonia Sotomayor:

I think you — I think you may have misspoke.

There aren’t standalone — standalone jobs that are not principal activities.

Mark R. Thierman:

–I’m sorry.

I did it backwards.

There are jobs that are not standalone, that are portions of the day that are principal activities.

The grapefruit would be one.

You don’t make grapefruit all day long for the judge.

There are — so the concept that it has to be a job in and of itself that you can have somebody else to do it is wrong.

The changing clothes, the engage to wait.

If you look in the — if you look in the legislative history and you look in the regulations, there are two scenarios that Senator Cooper says explains everything.

The first one is waiting — is you’ve got to come in and oil your machine before you can do your job.

That’s integral and indispensable.

But the second one is laying out work for other people.

Now, we don’t even know what that particular person’s job is.

For all we know, they could be the coffee maker or the — or the gofer or whatever, but they have a task that has been assigned by their employer that they must be paid for doing, the laying out the work of other people.

That’s not integral and indispensable to their job.

But it’s a specific task.

It’s a principal activity.

Mark R. Thierman:

And that’s — and that’s what I think the legislation contemplates.

Samuel A. Alito, Jr.:

Those are all things that somebody might pay somebody to do individually.

So if the — if the law clerk didn’t prepare the grapefruit, the judge might hire somebody else to come in and prepare the grapefruit.

But this is different, isn’t it?

Because nobody would — you wouldn’t pay anybody just to come in and go through a security–

Mark R. Thierman:

And nobody would pay anyone to have their changing into a uniform to be a waiter.

But if you require the changing on site, it’s compensable.

No one–

Samuel A. Alito, Jr.:

–All I’m saying is that the examples you gave are — are quite different because those are like mowing the lawn, things like that, those are things you would pay somebody.

If you didn’t have this employee do it, you could — you might hire somebody else to do it.

Mark R. Thierman:

–The problem is waiting to receive instructions.

Okay.

That is clearly engaged to wait; you’re waiting to receive instructions.

If you aren’t going to do anything with those instructions, that’s not a job.

You don’t say if someone’s a professional instruction-receiving person.

That’s not a job.

Yet it’s a principal activity.

You are engaged to wait.

And it doesn’t matter whether you’re engaged to wait because the employer wants you there on the ready for something to happen or the employer just says, you know, I feel like having the factory full on Tuesday.

Maybe — whatever the employer wants to do, assuming it’s not illegal–

Samuel A. Alito, Jr.:

No, I understand that, but it’s — that enables you to do the thing that the employer is paying you for.

It’s different from the examples that you gave.

Mark R. Thierman:

–It is if you’re not — if it does, in fact, lead to that.

But there are employers who say — they’re OCD, they want everyone there till 8 o ‘clock, even if you have nothing to do.

I’m paying you to stay till 8:00 o ‘clock, you stay till 8:00 o ‘clock.

There’s nothing that is coming out of that, but yet you are told to stay, so you stay.

And there’s no — there’s no function to it.

I mean, the employers do things like that or they do it for reasons that we don’t know or we won’t understand and we don’t care because that’s our system.

They are allowed to run their business their way.

And a corollary of that is that they tell people what to do.

Mark R. Thierman:

And, you know, the old rule in the union shop is obey and grieve.

If you don’t like, do it and then grieve it later.

The same thing here.

It doesn’t make sense what we’re doing, but we’re going to do it.

And that’s — and, you know, maybe it’s a slow day and he just wants to make his — the employer wants to keep the people busy.

Whatever it is, if the employer tells to you do it and it’s not within these carveouts, it — it is compensable.

And the drug testing is another example.

The drug testing is compensable.

Why?

Because your freedom — you’re giving up your time.

Your freedom isn’t — and you’re doing it because the employer told told you to do it.

Antonin Scalia:

Suppose the employer has enough stations that it just takes a minute to go through.

Would you still be making the argument that that’s compensable?

Mark R. Thierman:

If the — if the employees go through in a minute, it’s de minimis.

And that’s — and that’s the safety valve or the escape valve.

First we decide if it’s work; second we decide if it’s within the postliminary and preliminary carveout; and third we decide if it’s de minimis.

Antonin Scalia:

Gotcha.

Okay.

Five minutes?

Mark R. Thierman:

The Ninth Circuit uses a ten-minute rule.

It — it varies.

I mean, it — it — if it’s constantly done every day for ten minutes exactly, it gets close.

But three minutes, it’s trivial.

But we’re not talking trivial here.

We’re talking 20, 25 minutes.

And it’s 20 to 25 minutes not necessary to be done if they didn’t have the screening, if they didn’t have that — that type of screening.

You know, you take off your clothes, you take off your shoes, you put your jacket down, you empty your pockets.

And then the metal detector goes off anyway and they take you aside and they do another screening.

That’s not de minimis.

That’s a whole long process.

Mark R. Thierman:

If you go through the airport, we know it.

The funny thing is, you ask about the — we do this on the way into an airport.

Nobody screens you on the way out of an airport.

I don’t think the government very often screens people on the way out of a building.

It could be an exception, I know.

But — but generally speaking, people are screened on the way in, and that’s because it’s not for the benefit of the employer, it’s for the benefit of the public, for their security and safety.

This is not a security check.

This is not patting you down for weapons or taking out nuclear secrets or anything like that.

This is why — this is only a theft deterrent mechanism.

In fact, one could argue that the — that the search itself, whether they find anything or not, has an effect on every other employee who knows it’s happening.

It’s a–

Stephen G. Breyer:

What would the rule be — suppose there weren’t a special section about clothing.

Suppose that didn’t exist and — and suppose you had to change into a uniform.

Would that be compensable or not?

Mark R. Thierman:

–Well, the way the — the way the history–

Stephen G. Breyer:

What is the history?

Mark R. Thierman:

–The way the history is, it says if it’s necessary for the job and then they distinguish between changing on site and changing off site.

So we’re not talking about protective clothing.

We’re talking about decorative clothing.

Okay?

And the — and the argument is you change once in the morning when you go to work.

That you do on your own time.

And if the employer says, I want you to wear a blue shirt instead of a pink shirt or a yellow shirt, he’s not really adding to your burden.

All he’s doing is selecting your clothes for you.

Stephen G. Breyer:

But if it’s a uniform–

Mark R. Thierman:

But if it’s — even if it’s a uniform, if you could wear it to work — and this happens with police officers.

If they can wear their uniform to work and the — and the locker room at work is just for the convenience of the officers, it’s not compensable.

But if they have to change on site for whatever reason — in clean rooms they have to change on site because they need those uniforms to be pressed.

In one of our cases we have involving a casino, they don’t want their image diluted by seeing uniform outside–

Stephen G. Breyer:

–So you’re saying if you didn’t have that special section, this is compensable.

Stephen G. Breyer:

If it were a change of clothing, it had to take place on site.

Mark R. Thierman:

–Exactly.

Stephen G. Breyer:

And so this isn’t really different from that.

Mark R. Thierman:

That’s right.

It’s not different from that because they’re telling you you have to stay on site.

Stephen G. Breyer:

You’re on site and it’s no — it’s the same kind of burden that you might have to have protective clothes or some kind of special thing that you change into on site.

Mark R. Thierman:

Right.

They — the employer requires it for the employer’s convenience and it doesn’t fall in the travel exception.

It’s not checking in and checking out because, as I’ve said, the checking in and checking out, first of all, is a very, very minor task.

Stephen G. Breyer:

What’s the example that you you found that’s the closest to this that favors you?

Mark R. Thierman:

Drug testing.

Stephen G. Breyer:

Hmm?

Mark R. Thierman:

Drug testing.

Stephen G. Breyer:

Drug testing.

Mark R. Thierman:

Because drug testing you can do on the way out or you can do it on the — on the way in or — and — and if they want to test you on the way out because they want you to go — I mean, there are ways of defeating a drug test by taking other chemicals.

So they escort you to the bathroom, they make somebody sit there and watch you while you — while you — while you give them a sample and then they go test it, and they won’t let you leave until you’re done testing it — until they’re done testing it and they have a result.

That’s a close example.

And yet–

Stephen G. Breyer:

I mean, is that well established?

Mark R. Thierman:

–There’s DOL memo of 1997, September 15, and it says drug testing is compensable.

Physical exams for truck drivers and other types of people are compensable.

Fueling the truck when you’re done with your trip is compensable.

Antonin Scalia:

Is waiting to put on protective gear compensable?

Mark R. Thierman:

Waiting to put on, no; waiting to put off, yes.

Antonin Scalia:

Say it — say it again?

Mark R. Thierman:

Waiting to put on, no.

Antonin Scalia:

No.

Mark R. Thierman:

Waiting to put off, yes.

See, we’re — we’re dealing with a continuous workday rule and we’re on the other end of it.

Most of the cases everyone is talking about are preliminary to work.

Mark R. Thierman:

We’re talking postliminary if — or principal activity.

And on the way out, it’s the continuous workday rule works in favor of the employee.

On the way in, it works in favor of the employer because the clock hasn’t started.

Anyway–

Sonia Sotomayor:

All of the examples you’ve just been giving and what you say the rules are–

Mark R. Thierman:

–Yes.

Sonia Sotomayor:

–are they part of the labor regulations?

Mark R. Thierman:

Yes.

They’re — they’re–

Sonia Sotomayor:

So I can find them?

Mark R. Thierman:

–Yes.

They’re in — they’re in the — what the — what the government and Petitioner don’t discuss is the 785 series.

The 785 series is what’s work.

The 785 series says that if you are required to take a — a seminar, even if it’s nothing to do with what you — what you are employed to do, it’s compensable.

If it’s a voluntary seminar, then it — then there’s a — a kind of a test.

Well, is it related to your work, not related to your work, is it going to advance your work or not advance it.

But if it’s totally unrelated to your work, but you’re required to take the seminar, whether it’s after hours or right after class — or right after the work, it’s compensable.

There are a whole series of–

Antonin Scalia:

Unless it’s covered by the Portal-to-Portal Act.

And the Portal-to-Portal Act is an exception to that.

Mark R. Thierman:

–No.

The regulations point blank say it’s covered.

There’s no Portal-to-Portal Act argument on those regulations.

Antonin Scalia:

The notion that if it is compensable work it’s covered, there is an exception to — there’s an exception to what the employer requires.

He can require some things and yet not be liable for, under — under the Act, to pay for those things.

That’s what the Portal-to-Portal Act is about.

Mark R. Thierman:

The — and we say those exceptions that he’s not required to pay for or the transportation to and from the mine, which is (1)(a) — or (a)(1) of the Portal — 254(a)(1), and then you don’t get to (a)(2) if it’s a — if it’s a principal activity.

And the regulations on attending seminars does not discuss any exemption about way in or way out.

It simply says that if the employer mandates you take a seminar, no matter what it’s on, they have to pay you for the time.

So there’s no Portal-to-Portal Act issue if it’s a principal activity.

Mark R. Thierman:

And what the regulations of 78 — 785 say, these are lists of things that are compensable because the employer told you to do it.

And it’s — whether it’s fueling the truck at the end of the day — you don’t need to have the truck fueled at the end of the day because you’re already done driving, so it’s not integral and indispensable to anything.

Those are the kind of things that the Portal-to-Portal Act doesn’t cover because they’re principal activities.

I — I could — I could — sexual harassment training, another one.

We require employees to go through sexual harassment training.

Is that a part of their job?

It’s a task.

It’s required of them.

Stephen G. Breyer:

What about checkout?

Mark R. Thierman:

Checking out meaning?

Stephen G. Breyer:

Well, they say this is like checkout.

You go — you go check out, put your time card in, check out.

Mark R. Thierman:

Yes.

That is, punching in, punching out is an exception.

Checking in and checking out is an exception.

Stephen G. Breyer:

Why?

What’s the theory?

I mean, what’s the theory?

Mark R. Thierman:

Well, the theory, I think — I — I think that in 1947, that’s what they — they thought it was such a — I don’t want to use the word “ de minimis ” because it has whole other meaning, but it’s–

Stephen G. Breyer:

But they’re thinking — see, the other side says, well, this is like checking out, you know.

Mark R. Thierman:

–But it’s not.

And that’s — and isn’t that a factual question for a jury?

But it’s not.

It’s not like checking out because they’ve already checked out and you don’t check out twice.

I mean, you don’t.

You don’t check out twice.

And the difference between checking in — because, like, I don’t have a checkout example — but the difference in checking in and a roll call — and — and you must get paid for roll calls — is that the employer tells you to be there at a certain time and do this thing where — and that’s compensable.

But if a — so if you guild or if you put the one straw on top of the checking out, you break the camel.

And — and it’s a very, very small exception, because generally speaking, we want people not to work off the clock, because this is what this case is all about.

It’s about–

John G. Roberts, Jr.:

Thank you.

Thank you, counsel.

Mark R. Thierman:

–working off the clock.

Thank you, Your Honors.

John G. Roberts, Jr.:

Mr. Clement you have four minutes.

Paul D. Clement:

Thank you, Mr. Chief Justice.

Just a few points in rebuttal.

I’d like to start with what is the linchpin of principal activities.

Principal activities is obviously a term introduced to the Act by the Portal-to-Portal Act.

The regulations define that as work of consequence.

Now, my friend would like you to say that the linchpin is whether it’s required.

Here’s why that makes no sense at all.

Whether you get into the Fair Labor Standards Act in the first instance is determined by whether it’s required.

Now, it doesn’t much — do much good for Congress to say, don’t worry about that, employers.

We have an exception for you.

But the exception is also never satisfied as long as it’s required.

That would give the exception no–

Stephen G. Breyer:

That isn’t really, I think, their main point.

I think this is — this isn’t really like they say, just checking out.

What it is more like is drug testing.

You heard the argument.

Drug testing–

Paul D. Clement:

–I heard their argument.

Stephen G. Breyer:

–a seminar that you’d have on the thing about sexual harassment, da, da, da.

Okay.

So what is your response?

Paul D. Clement:

Especially as my friend describes drug testing, it doesn’t sound like any logical part of the egress process.

And I think that’s why those things are not covered.

They’re not covered not because–

Elena Kagan:

But you, certainly, Mr. Clement, make it part of the egress process.

Elena Kagan:

I mean, if this is just ingress/egress and I — I — seems as though that’s part of what the Portal-to-Portal Act does.

Why not make it part of the egress process and then there would be a wholly different outcome; is that right?

Paul D. Clement:

–Well, no, I don’t think so.

I think at some point, the Court can obviously take — police employers that want to lard on things that have nothing to do with the egress process and say you’ve got a wash my car on the way out.

And as he describes the drug testing process, you’re actually diverted from your process of exiting.

You’re escorted — escorted to — to the restroom and monitored while you do it.

It doesn’t sound anything like an egress process.

And those activities are covered not because they are postliminary activities that are integral and indispensable.

Those activities are covered because they’re work under the FLSA and the portal-to-portal exceptions for postliminary and preliminary activity simply don’t apply.

And that covers car washing; it covers drug testing; it covers also these videos.

It really is quite different.

But the checkout process, which is part of the egress process, really does make this very close.

One other point of clarification on this, Justice Scalia, you were exactly right when you said the 785 series, which they want to rely on, are about hours worked under the Fair Labor Standards Act.

They say what’s in the universe of things that are potentially subject to the exceptions of the Portal-to-Portal Act.

The principal activities is defined in the regulations in the 790 series, which is all about the Portal-to-Portal Act and 790.A is helpfully entitled principal activities.

What are principal activities?

Not anything that the employer requires, but work of consequence and that gets you to this concept that work of consequence is things like cutting grapefruit or preparing every work station in the facility or driving the bus that gets people to the mine.

Work of consequence is not checking in and checking out.

It is not going through security.

Nobody gets paid to go through security all day.

Now, it also — nobody gets paid take a bath all day either.

And so that’s why — that’s not a complete test.

You still have to ask the final question, which is whether it’s integral and indispensable to the principal activities.

Now, my friends really don’t want to talk about that, I think, with good reason because this clearly is not integral and indispensable.

And I don’t think you can make not stealing indispensable to the workday; otherwise, all these employees could stay home away from the — the merchandise and they’d never steal a thing and that would be their work function.

It just doesn’t work.

The work function is to fulfill the orders.

I want to say one last thing about your opening hypothetical, Justice Kagan.

There is another difference between your hypothetical and this situation, which at least as I understood your hypothetical, if an employee has to stay at their work station and while a 20-minute process goes on, that’s the employer requiring them to be on the premises for an extra 20 minutes.

That’s much more like being engaged to wait than waiting to engage.

Elena Kagan:

I gave it to you two ways.

And one was at your work station and the other was an employer, who knowing that there was this ingress/egress rule, made it part of the ingress/egress process.

So that’s my other question repeated again.

Paul D. Clement:

But — but even as to the modified hypothetical, if you have to stay on the employer’s premises for an extra 20 minutes, that’s closer to being engaged to wait as opposed to waiting to engage.

The allegations here are not that this process takes 25 minutes.

It can take up to 25 minutes if you’re in the very back of the line.

And I think one of the many reasons not to adopt their rule is you don’t want to create an incentive for every employee to try to get to the back of the line, which is hardly going to speed things up.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.