'Off-the-clock' security checks and the Fair Labor Standards Act — what companies need to know

The practice of conducting unpaid security checks of employees at their workplaces is under fire across the country. Many employers have been hit with class action suits seeking to test the legitimacy of this practice under the Fair Labor Standards Act (FLSA), as well as under various state laws.

The FLSA does not require an employer to compensate its employees for ‘preliminary’ or ‘postliminary’ activities. An exception occurs, however, when these activities are ‘integral and indispensable’ to the employees’ principal work activities. The judicial determination of what is ‘integral and indispensable’ is, however, fact intensive.

Comparisons to ‘donning and doffing’ cases are inevitable but not determinative. For instance, with respect to the doffing and donning of protective gear, decisions often turn on whether such gear is required by the law, the employer or the nature of the work. In contrast, courts have been hesitant to find time engaged in security checks compensable even if required by the law (e.g. airports) but appear more willing to do so where the sole purpose of the security checks is to prevent the theft of retail merchandise…

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