Tote that barge, lift that bale...and then stand in line for your pat-down.

Pay Amazon Workers for Standing in Line

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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The Supreme Court has agreed to take a case involving workers at an Amazon.com Inc. warehouse in Nevada, and whether their employer can force them to stand in line without pay.

Despite the headlines, this case doesn't actually involve Amazon, except insofar as it owns the site of the alleged labor law violations. The defendant in this case is Integrity Staffing Solutions, an Amazon contractor. The plaintiffs in Integrity Staffing Solutions v. Busk are employees who say they had to wait in line as long as 25 minutes -- unpaid -- to clear end-of-shift security screenings.

Should they be paid for that time? The intuitive answer is obvious: of course. Their employer requires the security screenings to guard against theft; it is part of their employment. How can your employer make you spend significant time doing something, while declining to pay you for it? Labor activists call this "wage theft," and I can't say that's an unfair word for it. If you want to pay your workers by the hour, you should pay for all of them.

But the law is never simple and intuitive, in large part because case law is made by the difficulty of hard corner cases. The briefs run through some of this history. For example: Does your employer have to pay you for your commuting time? That doesn't seem reasonable; employees could relocate to the far exurbs and get themselves time and a half for hours spent driving and singing along to "Free Fallin'." Okay, but what if you work in an airport, and at the end of your commute is a lengthy trip through the Transportation Security Administration lines? Should you get paid for what is essentially a mandatory 15 minutes added to your commute? A court said no; the TSA line is not part of your primary duties. Okay, how about if you work in a nuclear power plant, where, for the sake of the neighbors, everyone is rigorously searched and subject to radiation screenings? I can see the workers' argument there, but a court ruled against them.

The workers' brief tries to distinguish those cases from the Amazon case. The TSA case seems pretty easy: The security screening is not there for the benefit of the employer; it's there because it's required by law. You can't demand that your employer pay you for commuting just because they're located in the middle of an extended 15-mph zone. The security checks at the Amazon warehouse, on the other hand, are exclusively for the benefit of the employer, who is trying to prevent theft.

I found the brief less convincing in the nuclear power plant case, where the authors go into an extensive and not-particularly convincing argument about "primary duties." Their argument is that a security screening of a cafeteria lady at a nuclear power plant doesn't need to be paid because it's not part of her primary job duties, while for the warehouse workers, this is clearly tied up with picking stock in a warehouse. And yes, but. Not all warehouse workers get searched; the search is necessary for their employment at that particular warehouse. So too with cafeteria ladies, who presumably don't regularly have their radiation levels checked in your average high school.

That doesn't mean that they're wrong; I think they're pretty convincing when they argue that a key difference is who benefits. The security screenings at the airport and the nuclear power plant are there for the benefit of society, and for that matter, of the workers themselves. If there's a social benefit to cutting down on shrinkage at Amazon warehouses, it's pretty nebulous; most of the benefit accrues to the employers, almost none to the workers, who have to waste a good portion of their workday standing in line.

Of course, just because I think the workers have a good case does not mean that they will win. I Am Not a Lawyer, and the kind of ad-hoc intuitive heuristics that most people use to pick sides in these cases often make terrible law. When the Supreme Court decides this, they'll be considering broader questions than "is the employer acting like a jerk?" -- such as, "can we write a rule that can be applied consistently, without terrible unintended consequences?" and "should people be free to make labor contracts with annoying side requirements"? You don't want to end up with a rule that says people have to be paid time and a half because the job required them to move to the middle of nowhere; avoiding outcomes like that is one of the reasons that earlier cases came down the way they did.

If they do rule in favor of the warehouse workers, it will have broad and lasting consequences. Employers will have to decide whether the value of the security checks is worth the cost of hiring more security guards, or paying workers to stand in line. On net, this will probably benefit workers, unless they see their hourly wage reduced to make up for the cost of the shrinkage, or of hiring more people.

But whatever the legal principles, or the utilitarian calculus, economically, this may well be more efficient. After all, one of the most basic lessons of the dismal science is that if you get something for free, you're inclined to waste it.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
James Gibney at jgibney5@bloomberg.net