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Are COVID-19 and Anti-Theft Screenings Compensable?

August 27, 2021 | Employment Law

Marta arrives at the warehouse early these days.  There is a line at the door.  She waits with her coworkers for a temperature check before being allowed into the building.  It’s frustrating and there are costs.  She pays more to start daycare earlier.  Her school-age kids must get themselves onto the bus now.  Marta tries to be sure their homework makes it into their backpacks.  There is juice and fruit on the table.  It might be there when she gets home.

Marta works hard and smart, a little dehydrated and still sore from the day before.  She has grown accustomed to the demands of the algorithm-driven warehouse.  Her progress is tracked.  If she has works a little faster her quota increases.  A bad day might result in a written warning.  It’s physically exhausting, relentless work.  Lift.  Twist.  Carry.  Stack.  Sort.  Quick bathroom break; it’s easier now that she isn’t pregnant or nursing.

Lunch breaks include a security search and five minutes to walk to the lunch room.  Fifteen minutes to eat and squeeze in another quick pit-stop.  Then back to lift, twist, carry, stack, sort and lift, over and over until the end of shift.

She’ll wait in line again after work.  Clock out.  Restroom.  Anti-theft screening.  Sinking into her seat on the bus, it’s a little decadent, her down-time before dinner, homework, laundry… lather, rinse repeat.  Wash away the grime and fatigue.  Tomorrow comes early.

153,000 similar stories could be written in 2020 in California alone.

Looking at Marta’s day, in addition to the grueling, relentless expectations of her job, there is unpaid time.  Around the country many workers already burdened with non-compensable time, or “off the clock” work have had additional time added to their day as they are screened for COVID. Anti-theft screenings continue. Many of those screenings are after the time clock.

Workers have been organizing and demanding to be paid for screening time for a decade. On appeal, courts have ruled both for and against, interpreting the language of the Fair Labor Standards Act, reversing previous rulings.  In 2018 the California Supreme Court held that working a few minutes before or after clocking in or out is compensable, interpreting FLSA and California Labor Code.  In July, Pennsylvania’s Supreme Court ruled in favor of Amazon warehouse employees asking to expand the bounds of compensable time referencing the Pennsylvania Minimum Wage Act1 (PMWA).  In this case, the key factor identified by the court in making this time compensable is the location of the activity, i.e., the worksite. On June 17, California Occupational Safety & Health Standards Board republished COVID-19 Prevention Emergency Regulations that expire in January 2022.

Laws are changing and rumors abound. If you have questions about your compensation contact our informed attorneys today.