Wednesday, Dec 10, 2014, 1:30 pm
BY Moshe Z. Marvit
Yesterday's
Supreme Court ruling against Amazon warehouse workers means bosses can
require workers to work for periods of time and simply choose not to pay
them for it. (Scott Lewis / Flickr)
Stories of the horrid conditions for workers in Amazon
warehouses have been trickling out for years: The temperatures at the
warehouses vary wildly, with
some workers having to work in sub-zero conditions, others passing out from days where the
temperature soared above 100 degrees, workers crying from not being able to keep up the brutal pace demanded, and then being
threatened with termination for crying.
And we can now add another indignity to the list, coming yesterday at
the hands of the U.S. Supreme Court, which ruled in a 9-0 decision that
it is legal for Amazon warehouse workers not to be paid for a portion of
their workday.
At the end of long, taxing shifts at warehouses, Amazon requires
workers to go through security screenings to ensure that no one has
stolen anything from the warehouse. Because Amazon does not hire enough
security guards or stagger the quitting times of the workers, these
screenings add an additional 25 minutes to each employee’s shift. These
workers sued, arguing that under the Fair Labor Standards Act (FLSA),
the staffing company that hired them to work in Amazon warehouses was
required to pay them for the time spent in these security checks.
Writing for a unanimous court in
Integrity Staffing Solutions v. Busk,
Justice Clarence Thomas disagreed. (Though the workers work at an
Amazon warehouse, they are hired through the intermediary staffing
company, Integrity Staffing Solutions.)
At issue was a provision that Congress placed in the Portal-to-Portal
Act of 1947, which amended the FLSA by excluding “activities which are
preliminary to or postliminary to said principal activity or
activities.” The courts have included in the definition of “principal
activities” anything that is “integral and indispensable” to the
principal activities. In other words, as the 9th Circuit Court of
Appeals (which found in favor of the workers) stated, the test is
whether the activity is necessary for the work being performed and done
for the benefit of the employer.
Justice Thomas disagreed, turning to at least two dictionaries for
clarity. Using the Oxford English Dictionary, Justice Thomas found that
“integral” means “forming an intrinsic portion or element, as
distinguished from an adjunct or appendage.” Using Webster’s New
International Dictionary (2nd Ed.), Justice Thomas found that
“indispensable” means “a duty that cannot be dispensed with, remitted,
set aside, disregarded or neglected.” So, he concluded, an activity is a
“principal activity” only when it includes one that “is an intrinsic
element of those activities and one with which the employee cannot
dispense if he is to perform his principal activities.”
Using this tidy definition, Justice Thomas explains that the workers
are not eligible for pay for the time they spend in the security
screenings. The screenings are not the principal activity of Amazon
because they were not hired to go through screenings, and they are not
integral and indispensable because Amazon could have easily eliminated
the screenings. The Court’s argument, then, is that because it is
unnecessary for Amazon to execute long security screenings to conduct
its business, it need not pay these workers for the required time they
spend in these screenings.
By its own logic, the Supreme Court’s decision fails. The Court
discussed other cases where workers’ preliminary time was compensable
and tried to distinguish them. In one case, the Court held that
employers had to pay meatpackers who had to sharpen their knives,
“because dull knives would slow down production on the assembly line,
affect the appearance of the meat as well as the quality of the hides,
cause waste and lead to accidents.”
Amazon’s warehouses work off of extreme efficiency and knowledge of
where every one of millions of items are at any given time. For Amazon,
the possibility of worker theft would be even more damaging to its
business than most retailers because Amazon uses a system of “
chaotic storage.” Under this system, items are not shelved in categories, but rather in a seemingly random manner based on empty shelve space.
If an item cannot be found using a scanner (as a result of a theft,
for example), there is no simple workaround, and Amazon’s famed
efficiency would suffer. Amazon is thus concerned about theft not only
because of the monetary loss of the stolen product, but also because
theft slows down their warehouse efficiency—a cornerstone of their
business model. So if theft is as big of a concern as the retailer has
alleged (and a big enough concern to hire security guards to screen
workers at the end of every shift), it would seriously impair Amazon’s
efficiency at least as much as dull knives would slow down meatpacking
productions.
Perhaps the Supreme Court’s decision is unsurprising. In opposition
to these Amazon warehouse workers, who may occupy some of the worst jobs
in America, was an alliance of some of the nation’s largest
corporations and trade groups, the National League of Cities, the
National Association of Counties and the United States Government.
This alliance of business and government has now opened up the door
for increased worker abuses and wage theft. There is nothing stopping
Amazon and other retailers from trying to save more money by laying off
security staff that conduct screenings and make the workers wait longer.
Now, after a long day of backbreaking labor, these workers may have to
wait in hour-long lines for a security screening—a screening that
everyone from Justice Clarence Thomas on down has agreed is inessential.
Wordsmithing common sense is 21st century "Animal Farm."
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