The Developing Law On Compensability Of Time Spent Undergoing Security Screening

In February 2012, we reported on an increase in litigation concerning whether employees' time spent undergoing bag checks and other security screenings must be paid under the Fair Labor Standards Act (FLSA) or parallel state laws. We noted that retailers' loss-prevention measures were at the center of the debate. Since then, the debate has continued, with an increasing number of retailers facing class action lawsuits. In this edition of Morgan Lewis Retail Did You Know?, we provide an update on the developing law, including the U.S. Supreme Court's recent grant of certiorari in Busk v. Integrity Staffing Solutions, in which the U.S. Court of Appeals for the Ninth Circuit held that workers stated a claim under the FLSA in seeking pay for time spent undergoing security screenings meant to prevent employee theft. We also provide an update on the recent wave of security screening litigation. Finally, we provide practical advice for avoiding litigation and preparing