Is Time Spent For Pre-shift Screening(s) Conducted For Employee Safety Compensable Under The FLSA?

Here’s what you need to know about the issue of payment (or not) for undergoing security checks

The issue of payment (or not) for undergoing security checks has been a hot item of late, especially since the US Supreme Court issued its momentous decision in Integrity Staffing Solutions v. Busk. Now, these controversies have taken on a new tweak with Covid-related screenings. In a recent case, a group of workers are suing, requesting payment for time spent going through security and Covid-19 screenings. The Company defends by asserting that the activity is not integral to the employees’ regular jobs and the time is de minimis. The case is entitled Pipich v. O’Reilly Auto Enterprises LLC, and was filed in federal court in the Southern District of California.
 

The Company has filed a motion to dismiss, relying on the holding and rationale of Busk. The Company maintains that the addition of allegations relating to Covid screening (plus the security check time) did nothing to alter the dispositive applicability of the Supreme Court holding. The Covid-19 screenings were intended to maintain a safe workplace by keeping workers and customers safe by keeping symptomatic workers out of the workplace and thus preventing the spread of the disease.

The Company argued that “because these Covid screenings are meant to prevent symptomatic team members from working in the first place, they cannot be considered integral or indispensable to the team member’s work. As the Busk court explicitly explained, ‘preshift screening[s] conducted for employee safety’ are not compensable under the FLSA.”

The named plaintiff seeks a class of current and former workers who went through a Covid-19 screening or security inspection in the three-years before Complaint filing. The workers claim that the Company “implemented an illegal policy requiring its nonexempt workers to undergo a Covid-19 screening each shift without pay. This physical and medical examination constitutes compensable time that was worked by the plaintiffs and class members.”

The Takeaway

There have been a number of these lawsuits working their way through the courts with varying results. Some have settled. Some have relied exclusively on the de minimis argument which I think is problematic. I do not believe the de minimis argument is the winning one here. I believe the best theory is that the activity is not integrally related to the primary job. Yet, in a motion to dismiss an employer wants to set forth every defense it has.

Only takes one to win…

This article originally appeared here. 

Mark Tabakman is a Partner at Fox Rothschild LLP. He is a Labor and Employment Lawyer who handles both union and non-union matters for employers. He counsels Human Resource Professionals and in-house counsel in complying with the myriad federal/state employment laws to provide creative, practical, and cost-effective solutions to employment issues and problems. Mark concentrates in wage-hour law. He has deep experience in construction wage-hour law, where he represents construction contractors and sub-contractors in federal Department of Labor Davis-Bacon cases and audits, Service Contract Act cases and audits, state Department of Labor prevailing wage inspections, audits and debarment proceedings. Visit www.foxrothschild.com Follow @njwagelaw