What counts as productive work?

Photographer: Justin Sullivan/Getty Image

Amazon Workers Are Today's Coal Miners

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The worst fight between justices in the modern history of the U.S. Supreme Court grew out of a dispute about whether coal miners should be paid for the time it took them to travel thousands of feet up and down a mine shaft to do their jobs. The bitter interpersonal war it generated between Justice Hugo Black and Justice Robert Jackson started in 1945 and reached its climax in 1946, when their dispute hit newspapers' front pages and cost Jackson the chief justiceship. So you'd think the question of what activities count as part of the workday would've been solved by now, 70 years later.

You'd be wrong. In Integrity Staffing Solutions v. Busk, the Supreme Court is hearing arguments in a dispute between an Amazon.com contractor and its employees about whether workers should be paid for time spent going through security checks to make sure they haven't stolen from the warehouse on the way home. Structurally, the issue is the same for Amazon’s warehouse workers as it was for the coal miners. Amazon's warehouse empire is even a plausible analogue for the coal mines of a bygone age. The persistence of the problem raises a deep question: Why, exactly, can't we agree on what counts as part of the job?

The legal side of the question goes back to 1937 and the late New Deal era, when then-Senator Hugo Black, a sponsor of the Fair Labor Standards Act, was defending it on the floor of the Senate. The FLSA specified that employees would be paid time and a half for work that went beyond the 40 hour workweek; but he did not define what counted as “work.” Eager to get the law passed, Black assured his colleagues that the law would not disturb or displace existing agreements between unions and management.

Once he was on the Supreme Court, however, Black sang a different tune. In cases involving iron mining and then, fatefully, coal mining, Black voted to count travel time up and down the mine as part of the job -- despite existing labor agreements that didn't count it. Behind the scenes, Black urged Justice Frank Murphy to write and issue the coal mining decision extremely fast. What he did not mention -- although Jackson knew it -- was that the miners were in the midst of a labor dispute in which they were represented by Black’s former law partner in Montgomery, Alabama.

Jackson was in the minority on the coal mining case -- and he was outraged by both the decision and the pressure on Murphy. The mine owners asked for a rehearing on the ground that Black should have recused himself. Black dismissed the idea. In the justices’ private conference, Jackson threatened to hint at his disapproval in a dissent from the denial of rehearing. Black went ballistic, and told Jackson that if he did so it “would be a declaration of war.” One writer called it “the greatest fight in the nation’s highest and most the secret judicial conference room.”

The next year, when the chief justiceship came open, Black went to President Harry Truman and told him that he and Justice William O. Douglas would resign if Jackson became chief. When Jackson found out that Black had blocked him from his life's aspiration, he wrote a long public letter detailing his accusations and revealing what Black had said to him in the conference. The letter was on the front page of every national paper. Both men looked terrible.

In 1946, while Jackson was away serving as chief prosecutor at Nuremberg, the court decided another case in favor of workers, requiring compensation for “all time during which an employee is necessarily required to be on the employer's premises.” Congress went into action, and in 1947 passed the Portal to Portal Act that reversed the line of doctrine for which Black was largely responsible. The law, still in force, eliminated compensation for travel time to the job site and also said “preliminary” or “postliminary” time wouldn't count as work. The Supreme Court has said that work isn’t preliminary or postliminary if it forms “an integral and indispensable part of the principal activities” for which the workers are employed.

The Amazon contractor -- joined, notably, by the Barack Obama administration -- says the anti-theft screening isn't integral to the warehouse employees’ productive work, so needn't be paid. The employees say they have to be there, so the screening is integral and indispensable.

The employees’ argument goes right back to Black’s instincts as a justice, while the employers’ position maps onto what Black promised when he was a senator trying to pass the FLSA. Neither position is obviously correct. On the one hand, it seems unfair not to pay people for time spent doing something they are obligated to do in order to hold their jobs. On the other hand, especially where employees are unionized, the arms’ length negotiation between management and labor should cover questions of what time is compensated, and, in general, the government should probably respect the deal struck by those parties in the market.

This conflict at the heart of the case clarifies why the issue won't go away. It's not just that the struggle between wage-labor and capital is eternal, though that's part of the equation. It's that there’s a fundamental tension between our intuitive sense of what is fair and the logic of free markets, in which both sides are assumed to agree voluntarily. Choosing between the two is a challenge relived on every difficult policy question. Whatever the Supreme Court decides today, 70 years from now, our grandchildren will probably still be fighting about it.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net