12/16/2014 01:42 pm ET Updated Feb 15, 2015

The Waiting Is the Hardest Part: Big Business Wins Again

The Supreme Court handed another victory to big business at the expense of the powerless last week. The upshot, in the ironically entitled Busk v. Integrity Staffing Solutions, is that employers may now require their employees to work off the clock indefinitely, as long as the labor isn't directly related to the employee's job.

Yes, you read correctly. The somewhat counterintuitive reasoning is that the federal minimum wage and overtime laws do not apply to work that is not directly necessary for the job, or, as Supreme Court precedent has it, "integral and indispensable". Warehouses may now require their employees to clock out and then wait two hours on a line to have their bags checked to ensure they're not stealing from their employer, because the bag check is not "integral and indispensable" to their job.

So the less related to the job the required activity is, the less likely you must be paid. A manager can require a retail cashier to buff the manager's corns before she leaves, and that's off the clock. If he asks her to run back to remind the incoming cashier of the tally for the earlier shift, that's on the clock. A bit of a disconnect, no?

Disappointingly, the case was unanimous, 9-0. This is because courts often fetishize "stare decisis", the idea that prior rulings should form the basis for future law, leading to sometimes absurd results. The Busk decision is a textbook example of legal language leading to unintended results, and Courts afraid to revisit that language.

In the 1930s, the "Fair Labor Standards Act" brought in a wide array of protections for labor in the United States, including the minimum wage and overtime pay standards. The courts interpreted the laws broadly- more broadly than Congress originally anticipated- and so Congress dialed the FLSA back with the "Portal to Portal" act, to make it clear that worker activities that were "preliminary or postliminary" to the "principal activities" the employee is employed to perform were off the clock.

Now, of course, it is the business friendly "portal to portal act" that is interpreted expansively. In a judicial "common law" interpretation of "principal activities", the Supreme Court has created the "integral and indispensable" test to determine whether activities are "principal activities" that must be compensated. It is this test that has led to the absurd result that a business can require its employees to do virtually anything after they punch out or before they punch in, so long as it is sufficiently unrelated to the employee's job.

If you believe in the minimum wage, then you surely don't believe that an employer should be permitted to require time consuming mandatory procedures at the workplace every workday, without pay. But the conservative justices, perhaps the most pro-business Supreme Court block the country has ever seen, resorted to tortured legal parsing of language to gut the minimum wage. And the more moderate justices are too enslaved to process, too married to "stare decisis", to jettison language that no longer serves its intended purpose.

The one solution, suggested by Justice Clarence Thomas, was that the obvious unfairness of the mandatory wait times was something more "properly presented to the employer at the bargaining table, not to the Court in an FLSA claim." It's not clear what bargaining table Justice Thomas was referring to. The workers in the Busk case were not unionized, and individual low-wage workers have very little bargaining power without a union. The Supreme Court used to believe that the "prime purpose" of the minimum wage is to "aid the unprotected, unorganized, and lowest paid of the nation's working population, that is, those employees who lack sufficient bargaining power". Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945). Maybe that language, and not a court-created common law definition of a single word, is what should motivate the Court's rulings.