- A group of Walmart employees have alleged that the company failed to pay them for time spent in mandatory COVID-19 screenings before each shift, in violation of Arizona law (Arrison, et al. v. Walmart, Inc. and Wal-Mart Associates, Inc., No. 2:21-cv-00481 (D. Ariz, March 22, 2021)).
- Employees in the class action lawsuit claim that the nationwide retailer in the spring of 2020 implemented a company-wide policy requiring workers to undergo a COVID-19 screening each shift. Workers had to arrive before their scheduled shift to complete a questionnaire, screening and body temperature scan.
- The workers claimed that it took about 10 to 15 minutes to wait in line and undergo the screening and that they were not permitted to clock in during that time. The plaintiffs alleged that Walmart has shown that the time should have been compensated because in November 2020, it began adding five minutes to each employee's daily recorded time to partially compensate for the screening.
Nothing in federal nondiscrimination law prevents employers from screening employees entering a worksite for coronavirus-related symptoms, according to U.S. Equal Employment Opportunity Commission guidance. Likewise, employers may administer COVID-19 tests to employees, according to the commission.
But the question of compensability remains. In discussing federal wage and hour law, Samantha Bononno, a partner at Fisher Phillips, said last summer that a 2014 U.S. Supreme Court case, Integrity Staffing Solutions v. Busk, may prove useful: The court held that post-shift security checks for warehouse workers were not "principle activities" and, as a result, are not compensable under the Fair Labor Standards Act.
"On the whole though, otherwise non-compensable activities can become hours worked depending on when they take place," she continued. "Thus, a review of the principles is only the starting point to an employer's analysis. A thoughtful plan (such as staggering arrivals and ensuring that no compensable activities have occurred already) to minimize the risks, when possible, is key."
State and local laws also may create additional responsibilities of which employers may need to be aware.