Constitution Daily

Smart conversation from the National Constitution Center

Worker pay, jury duty at the Supreme Court today

October 8, 2014 by Nicandro Iannacci


jury_boxOn the third day of its new term, the Supreme Court will consider worker pay for security screenings and the privacy of statements in jury deliberations.


Integrity Staffing Solutions v. Busk comes from Nevada, where Jesse Busk works for Integrity as an Amazon warehouse shift worker. At the end of the workday, he and his colleagues are required to pass through a security screening to confirm they haven’t stolen any products.


The full screening process typically takes 30 minutes to complete, but Busk isn’t compensated for that time. Under the 1947 Portal-to-Portal Act, employers aren’t required to pay overtime for activities that aren’t “integral and dispensable” to an employee’s “principal activities.”


Integrity, represented by Paul Clement, says the screenings are “postliminary” activities that qualify for the Act’s exemption. Busk’s attorney, Mark Thierman, thinks that’s ridiculous.


“The antitheft check is ‘integral and indispensable’ because the company said you have to do it,” he told the New York Times. “If the company tells you to do it, it doesn’t matter whether it’s related to what else you do on the job.”


The Ninth Circuit agreed, reversing the district court in finding that overtime pay was required because the screening is “necessary to the principal work performed” and is “done for the benefit of the employer.


But in the last term, the Supreme Court ruled in Sandifer v. United States Steel Corporation that the “donning and doffing” of safety gear before and after shifts doesn’t require compensation, suggesting the Court may once again hold the line on overtime pay.


After they break for lunch, the Justices will return to the courtroom for oral arguments in Warger v. Shauers, an unusual case from South Dakota that began with a crash.


In 2006, Gregory Warger lost part of his leg when he was hit by Randy Shauers while riding a motorcycle. He sued for compensation but the jury cleared Shauers of liability.


Not long after the verdict, however, one of the jurors, Stacey Titus, made a sworn statement that the jury’s forewoman, Regina Whipple, revealed personal bias during deliberations. Specifically, he claims Whipple referred to her daughter’s guilt in a fatal car accident, saying that a lawsuit “would have ruined her life.”


Naturally, Warger is seeking a new trial. But first, the Supreme Court will rule on whether or not he can use Titus’ testimony in order to get one.


He’ll face an uphill battle, as the high court has traditionally been reluctant to admit evidence from within the jury room. What’s more, Federal Rule of Evidence 606 prohibits most cases of juror testimony against the validity of a verdict.


Then again, there are exceptions, including “extraneous prejudicial information” and improper “outside influence.” And of course, there’s the Sixth Amendment.


Transcripts of oral arguments in both cases will be available this afternoon on


Nicandro Iannacci is a web strategist at the National Constitution Center.


Recent Stories on Constitution Daily


‘Ask Jeff’ about the Bill of Rights


Constitution Check: The legal battle over same-sex marriage is over – or is it?


Broken lights and the Fourth Amendment


Sign up for our email newsletter