Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2015 CANADIAN LABOUR REPORTER news Photo: (Reuters photographer) Screening 'employment standards issue' < from pg. 1 checks take up to 30 minutes each day, accord- ing to employees at the facility where Amazon merchandise is processed and shipped. Dur- ing screenings, employees remove items — including wallets, keys and belts — from their person and pass through metal detectors. The workers' claims were "simply not true," said Amazon spokesperson Kelly Cheese- man, according to Reuters, and the company's screening process is designed to take 90 sec- onds per employee. The District Court dismissed the complaint, citing a failure to state a claim and holding that screenings were postliminary activities and not compensable. The 9 th U.S. Circuit Court of Appeals reversed the decision, ruling post- liminary activities are compensable when they are integral to an employee's principal activities and citing the fact that the security screenings were performed for the employer's benefit. Justice Clarence Thomas, writing on behalf of the U.S. Supreme Court, found the screen- ing process is not a "principal activity" of the employees' jobs under the Fair Labor Standards Act. The time spent undergoing security checks is not subject to compensation, Thomas said, because for workers to be paid the activity in question must be "an intrinsic element" of their job. The ruling cited the Portal-to-Portal Act, which exempts U.S. employers from com- pensating workers for travel to and from work as well as for activities that are considered pre- liminary or postliminary to the employee's ac- tual principal activities. "The screenings were not an intrinsic ele- ment of retrieving products from warehouse shelves or packaging them for shipment," the court found. "Integrity Staffing could have eliminated the screenings altogether without impairing the employees' ability to complete their work." Implications for Canada Employees not represented by unions in Canada could face the same pay restrictions, according to Lewis Gottheil, director of Uni- for's legal department. Unionized employees can rely on their representatives to determine issues of compensation and hours of work, he said, while those without collective agree- ments are governed by the Employment Stan- dards Act. "In a non-union environment, an employer is able to set terms and conditions of employ- ment more unilaterally, if you will," Gottheil said. "I would say that this time should be paid time because it's time in which the person, as an employee, is being directed by the employer to perform or to undergo certain activities or certain duties, all within the employment con- text. It's, in a sense, performance of work or duties associated with performance of work." The U.S. Supreme Court took a more ex- pansive view of employer rights than is com- mon in Canada, he said, and an activity should not need to be considered a "principal activity" in order to be compensable. "In my view, it doesn't have to be a principal activity as long as it is associated in a relevant way to the activities of the employer at the di- rection of the employer," Gottheil said. "The performance of work is not just — I don't want to be too simplistic — but the performance of work and work time is more than just fasten- ing a bolt to a piece of metal. It's performing services and doing things at the direction of the employer within the organizational integ- rity of the employer." Employers in Canada must also take into ac- count issues of reasonable grounds before en- acting security screenings, Gottheil said. "The only way an employer can even attempt to exercise a kind of security check is on reason- able grounds where there is a demonstrated problem of theft. The idea that you could have a broadly based security screening — which is, to me, another term for a search — that's unaccept- able." Unifor would fight that type of broad-based security search both legally and through col- lective bargaining, he said. Chris Roberts, director of social and eco- nomic policy for the Canadian Labour Con- gress, agreed collective bargaining is one of the most effective methods for determining fair pay for all employment activities. However, the issue of security screening goes beyond the sphere of collective bargain- ing and union participation, he said, and the conflict between Integrity Staffing and its former employees should also be considered from an employment standards perspective. "One of the reasons this is an issue in the States is because employers know they can force their employees to submit to this," Rob- erts said. "I don't think it's accidental that these are non-union contexts in which workers are forced, after a full day at work, to spend a half- hour at work unable to go home in order to pass through an elaborate screening process. I think in a unionized environment that would very quickly be subject to contention and ob- viously employees would have another avenue besides having to go to court." Many collective agreements in Canada include terms concerning preliminary and postlimi- nary activities, such as paid breaks provided for washing up at the end of a shift.

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