By Bill Blum
An Amazon.com employee stocks products along one of the many miles of aisles at an fulfillment center in Phoenix. AP/Ross D. Franklin
Jesse Busk has almost no chance of winning his lawsuit when it comes before the Supreme Court for oral argument Wednesday during the opening week of the new 2014-15 term. His dismal prospects stem not from any legal weaknesses in his case but from one overriding fatal flaw—he’s an ordinary working person challenging the prerogatives of corporate power. Cases like his seldom succeed before the panel led by Chief Justice John Roberts, rated by many observers and scholars as the most pro-business iteration of the high tribunal since the early 1930s.
Busk used to work as an Amazon.com “warehouse associate” in Las Vegas, filling orders placed by customers of the online retail behemoth, earning between $11.65 and $12.35 an hour without health care or paid leave for shifts that typically lasted 12 hours. Technically, he wasn’t employed by Amazon but by Delaware-based Integrity Staffing Solutions Inc., a high-powered nationwide agency that provides temporary workers to Amazon as well as other big-name companies such as Walmart, JPMorgan Chase and Zappos.com.
As depicted in the CNBC documentary “Amazon Rising” that aired in June, the services that warehouse associates perform hoisting commodities large and small off shelves and onto giant conveyor belts for packing and mailing are grueling and unrelenting, relieved only by 30-minute meal breaks and brief trips to the bathroom that are discouraged by supervisors. One former employee interviewed in the film described her stint at the massive complexes that Amazon euphemistically labels “fulfillment centers” as akin to time served “in a prison.”
In 2010, Busk and Laurie Castro, a warehouse associate from the fulfillment center in Fernley, Nev., filed a federal class-action lawsuit against Integrity, alleging violations of the Fair Labor Standards Act, the New Deal-era statute designed to protect the rights of hourly workers to minimum wages, prompt paychecks and overtime. Among other grievances, they contended they were owed back pay for uncompensated time spent checking out of work each day, standing in airport-like security lines for up to 25 minutes. Together with hundreds of other workers, they were required to remove their wallets, keys and belts, and made to pass through metal detectors and sometimes had their bodies passed over with hand-held wands to prevent employee theft and what Amazon calls “inventory shrinkage.”
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In 2011, a federal District Court judge dismissed their complaint, holding that end-of-day security checkouts are not subject to FLSA as they aren’t part of an employee’s actual work activities but merely “postliminary” to those activities. Two years later, however, the 9th Circuit Court of Appeals—still the country’s most liberal appellate body—reversed and reinstated the FLSA-based security checkout claim, creating a split in authority among the federal circuits on the proper interpretation of the act.
Integrity responded by retaining the services of conservative super lawyer Paul Clement, and in March the Supreme Court granted Integrity’s petition to review the 9th Circuit’s ruling. Since then, Clement, who teaches law at Georgetown University and once served as solicitor general and acting attorney general under President George W. Bush, has been joined by an array of powerful business lobbies, including the U.S. Chamber of Commerce and the National Association of Manufacturers, which have filed amicus (friend-of-the-court) briefs in support of Integrity. The Obama administration also has filed an amicus pleading backing Integrity’s narrow reading of the FLSA.
Although the Supreme Court often agrees to hear cases in which, as in this instance, the lower courts are divided on an important question of law, the real reason it has agreed to hear Busk and Castro’s suit, quite simply, is that it represents yet another opportunity for it to come to the rescue of its corporate patrons. Among other rulings since the appointment of Roberts to the chief’s position in 2005, the court has upheld the constitutionality of state right-to-work laws and imposed new burdens on employees seeking to file racial and sex discrimination complaints against their employers and disability claims against workplace insurers. The court has also shielded companies from liability for defective and dangerous products, reduced the financial risks of environmental pollution and opened the door to unlimited corporate political spending with its landmark Citizens United decision.
Last term, in a heated 5-4 opinion (Harris v. Quinn), the court delivered a near-fatal blow to the right of public-employee unions to collect “fair-share” fees in lieu of formal dues from nonunion members to defray the costs of collective bargaining that benefits all employees. And in a unanimous 9-0 decision (Sandifer v. United States Steel Corp.) joined even by the court’s Democratic appointees that all but dooms Busk and Castro, the panel held that steelworkers are not entitled to compensation under FLSA for time spent donning and doffing bulky protective gear before and after work.
Should Busk and Castro somehow defy the heavy odds and manage to salvage a victory—meaning their case is permitted to proceed to trial on the issue of monetary damages—they plan to add Amazon as a formal defendant along with Integrity. A win before the Supreme Court would also breathe new life into a slew of similar cases brought by workers across the country against Amazon and other businesses such as Apple and Urban Outfitters that also subject their staffs to anti-theft security probes.
Companies such as Apple and Amazon, which rank as the first and 24th most valuable U.S.-listed corporations, respectively, could easily absorb the added labor costs entailed in fully compensating their workers. But as Busk put it in a 2013 interview with The Huffington Post—and more importantly as the Supreme Court under Roberts sees it—“the mindset” is “just to be grateful you have a job.”
Could we expect anything less from the most powerful legal body in the land, now known unaffectionately far and wide as the “corporate court”?
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