Tue, 03/02/2021
The Fair Labor Standards Act requires payment for “work,” but does not define the term. For most workers, the “workday” begins long before clocking in. We set alarms, change clothes, check emails, and travel to our workplaces. The law is clear that most preparatory tasks like these—those occurring at home or while commuting—are not compensable. You generally cannot get paid, for example, for putting on your uniform at home or for the time spent driving to your workplace.
But frequently there are also mandatory activities that occur once we arrive at work, but still before clocking in. They may include going through security checkpoints to get to our workstations, obtaining equipment, or talking to supervisors or colleagues about upcoming tasks. For many employees, the COVID-19 pandemic has only increased such activities. Now employees must show up to their workplaces early to obtain PPE, receive temperature checks, or fill out COVID-19 questionnaires prior to clocking in and “starting” their shift. Are these tasks compensable?
Possibly! The Supreme Court has found that pre-shift activities (or similar post-shift activities) may be compensable if they are the employee’s “principal activities” or they are “integral and indispensable” to those principal activities. Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 33 (2014). In other words, if it would be impossible for employees to do their jobs safely and effectively without the pre-shift activities, then the paid “workday” should start with that activity and continue until the last similar activity is performed. For example, in Aguilar v. Management & Training Corporation, a federal appeals court found that detention officers working in a prison were entitled to the time they spent undergoing pre-shift security screenings, as these screenings were “intrinsic” to the role of maintaining security at the prison. 948 F.3d 1270, 1279 (10th Cir. 2020). If the officers themselves were not screened, the court reasoned, they could “inadvertently or intentionally bring weapons or other contraband into the prison,” which would defeat the function of their job. Id.
Recently, Walmart employees in California filed a case for overtime compensation related to lengthy, mandatory, and unpaid COVID-19 screenings. See Haro v. Walmart, Civil Action No. 1:21-cv-00239-DAD-SKO (E.D. Cal. Feb. 23, 2021). These employees argue that the COVID-19 screenings have caused them to work in excess of 40 hours per week, entitling them to overtime pay. We do not know if these employees will ultimately be successful, but they make a strong argument: Without the COVID-19 screenings, it would be impossible for them to perform their primary duty of serving and assisting Walmart customers.
If you think you may be entitled pay for pre-shift or post-shift activities, please contact us at info@mselaborlaw.com.
