Eleven years ago, an Amazon worker sued the company for screening him at the end of his shifts at its warehouse to make sure he wasn’t smuggling inventory out the door. The worker’s complaint: It was Amazon that was taking something from him.
The case made it to the Supreme Court, where the warehouse worker, now joined by others, argued that he should be compensated for going through long lines and undergoing searches through bags and pockets. Amazon required the process, the workers said, so the time should be considered work.
The justices didn’t agree. In a unanimous decision, the court ruled Amazon didn’t have to pay workers for time spent in line or being screened. The 2014 decision is known as Integrity Staffing Solutions v. Busk.
Those searches have reportedly gotten much shorter, but the pandemic has brought the same issue to the fore again. In February, former warehouse workers in California sued Amazon because it didn’t pay them for mandatory COVID-19 checks before shifts. Amazon says the screenings don’t require payment because they were part of the larger push to keep COVID in check.
“Because the pandemic threatens all members of the community, it has necessitated preventive action by everyone for everyone’s benefit,” the company argued in a court filing. In June, Amazon asked a judge to throw the case out.
Amazon didn’t respond to requests for comment for this story.
Amazon’s strategy is hardly unique. Giant employers routinely ask workers to engage in time-consuming tasks like after-shift bag searches but don’t pay them because the activity isn’t productive for the company. CVS and Apple have also resisted paying employees for such searches. While federal law may be on their side, the companies have had to pay under California state law. Apple is working out a class-wide settlement with its workers, and CVS settled its case for nearly $13 million in 2016, affecting about 78,000 people who’d worked for the drugstore chain.
Though Amazon’s practices might be similar to those at other companies, the e-commerce giant’s size gives it power to shape the way employment law is applied. Amazon now employs nearly 1.3 million people, according to company SEC filings. More than half of them are in the US, according to a Wall Street Journal estimate from September. The New York Times reported Tuesday that Amazon has churned through workers in the past year, replacing the equivalent of its workforce every eight months, which multiplies the number of people its workplace policies have touched. This puts Amazon in the same weight class as Walmart, an employer of millions that helped effectively reshape class-action law in 2011. In a landmark discrimination case, Walmart secured a Supreme Court ruling that created a tougher legal standard for workers to sue as a class.
Like the big box giant before it, Amazon is likely to become subject to even more suits over wages, workplace conditions and discrimination as it grows (it’s also currently, and Black corporate employees told Vox Tuesday they’ve seen a pattern of resistance to addressing racist encounters and unfair practices). The strict treatment isn’t limited to hourly workers. Office workers are subject to review process that results in 6% of them leaving the company, according to The Seattle Times. The departures are known as “unregretted attrition,” according to the paper. (An Amazon spokesperson said employees have multiple channels they can use to raise concerns if they don’t feel they’re getting a fair performance review.)
A large company that has proven itself willing to fight in court instead of settling typically attracts yet more lawsuits, says Michael Rubin, an attorney who specializes in employment law appeals. Lawyers can potentially win big judgments for workers and know the company will pay (as opposed to declaring bankruptcy or dissolving overnight, which happens with some small employers).
The result is “more precedent-setting cases,” Rubin said, which will affect not just Amazon’s employees but also how workplace law is applied to everyone’s jobs. Based on the way Amazon has defended itself from lawsuits so far, lawyers say the company’s employees can expect more tough court battles.
“I’ve had cases against Amazon and Walmart,” said Joshua Buck, an attorney who represented Amazon workers in the Busk case. “They are very, very similar.”
Workers wait in line without getting paid
When the Busk case was filed in 2010, workers said security screenings and waiting time took about 10 to 15 minutes. Buck, the workers’ attorney, said Amazon appeared to speed up the screenings after an appeals court ruled that federal law required the company pay for security checks. (The Supreme Court decision overturned that ruling.) In recent court filings, Amazon said its security screenings currently take almost no time, with workers often walking through checkpoints without breaking stride.
Now COVID-19 screenings can take more than 20 minutes, according to the California workers suing Amazon. As Prime Day nears, many workers who usually clock four 10-hour days each week will do mandatory overtime. An additional day of work means an additional screening and more time in line.
In another group of lawsuits, Amazon workers in California said they have to walk far and wait in lines during breaks. They sued Amazon for failing to provide workers with full rest breaks and meal periods. California law says employers have to relinquish control over workers during break times and lunches, but the warehouse workers say that isn’t what happens in real life.
The workers say they have to walk across warehouses that range from 600,000 square feet to 1 million square feet to get to break rooms, meaning they get less than 10 minutes of real rest, the legal minimum for breaks. The workers also claim they have to give up yet more rest time if they want to leave the facility on a lunch break, because they have to go through security screenings on the way out.
Why Amazon doesn’t pay its workers for waiting or walking
A federal judge agreed with Amazon that the company’s California warehouse workers were receiving their full breaks despite the distant break rooms. The judge also said that security screening practices at the company’s warehouses vary so widely that the workers’ complaints couldn’t be resolved on behalf of all workers in the state. Many workers spent no time going through security, and some facilities didn’t have metal detectors at all, Amazon said. As a result, the workers won’t be able to pursue those claims in court unless a higher court reverses the judge’s ruling.
According to the Supreme Court, Amazon doesn’t have to pay workers for security checks because of a federal law called the Portal-to-Portal Act. Under the law, tasks performed by employees as they start or finish their shifts don’t require compensation unless they’re part of the principal work work they’re hired to do.
Meat packers who sharpen their knives before a shift, for example, are engaging in essential activity that directly affects the efficiency and quality of their work, the high court has held. Similarly, chemical workers get paid when they change into protective clothing because it protects their safety.
Security checks have no bearing on whether a warehouse worker is safe or effective, Amazon has successfully argued.
Warehouse workers rely on courts to change Amazon policies
A random security check put Jennifer Bates over the edge in Bessemer, Alabama, the warehouse worker told The New York Times. After she learned she wouldn’t get a longer rest period for the screening she underwent while trying to leave the warehouse on a break, she joined an effort to unionize the warehouse. Earlier this year, the union election failed.
The result of the election, which the Retail, Wholesale and Department Store Union is seeking to have thrown out, means Amazon employees are left to argue with their managers about policies or take Amazon to court over them. The National Labor Relations Board found Amazon has retaliated against employees who organize strikes and walkouts, which are also options.
During oral arguments for the Busk case, Chief Justice John Roberts asked why employees can’t take their complaints over security screenings to the bargaining table. Maybe they could ask for a higher wage if they aren’t going to be compensated for the screenings, he said.
There is no bargaining table, replied Mark Thierman, the workers’ attorney. “These are all non-union employees.”