COVID-19 Safety Precautions Expose U.S. Employers to New Wage and Hourly Claims | Dorsey & Whitney LLP

Two former Cresco Labs employees filed a class action and class action lawsuit in Illinois federal court alleging that their employer failed to compensate its employees for the time spent putting on and taking off personal protective equipment ( “PPE”). Likewise, two Walmart, Inc. employees filed a class action and class action lawsuit in California federal court alleging that the company failed to compensate employees for time spent performing health exams prior to quarter.

Canadian employers with US-based operations should take special care to compensate all non-exempt employees for time spent donning and removing required PPE and participating in mandatory pre-shift health exams. Under the Fair Labor Standards Act (“FLSA”) and state laws and schedules, employees must be compensated for all activities that are integral to their primary work activities. Time spent putting on and taking off PPE and performing mandatory pre-shift health exams is likely compensable, and employers should treat it as time worked.

I. Employers must compensate employees for time spent putting on and taking off PPE and mandatory health exams before shift

Like many employers facing the COVID-19 pandemic, Cresco Labs and Walmart are requiring employees to wear PPE during their shifts and perform pre-shift health exams. While these safety precautions are appropriate to stop the spread of COVID-19 in the workplace, employees should be compensated for the time they spend on mandatory safety activities.

According to Cresco Labs’ complaint, employees were required to show up for work 12 to 16 minutes in advance to complete mandatory health exams and put on company-supplied PPE. The complaint also alleges that employees spent three to five minutes after their shift removing PPE, including masks, hairnets, cuffs, gloves, scrubs and protective footwear. While the company allowed employees to arrive five minutes early to complete the health check and put on their PPE, the complainants allege it took more than five minutes to complete pre-shift activities. The complaint also alleges that the company is rounding off employees’ punches to their scheduled start times, thereby eliminating their pre-shift pay. Since employees were typically expected to work forty hours per week, the complainants also allege non-payment of overtime as required by the FLSA.

According to the complaint filed in the Walmart case, “Employees are required to arrive at Walmart at least 30 minutes before the start of their scheduled shift so that they can complete the COVID-19 screening with sufficient time to check in. before the start of their scheduled shift. The complaint alleges that employees lined up to have their temperature taken and screened for symptoms and exposure. Employees who passed the check were given stickers and PPE before being allowed to check in at the other end of the store. Employees who failed the screening would be given a second review before checking in. Depending on the complaint, the whole process would take ten to fifteen minutes, or even longer if there was a queue.

Generally, employers are required to compensate non-exempt employees for all compensable time, which includes time spent on all activities that are an integral part of their work activities. Employees who must complete pre-shift health exams and put on company-issued PPE should be compensated for this time, as these activities are necessary for the employee to start their shift. Likewise, employees who are required to self-report symptoms before arriving at their workplace may be entitled to pay for the time between reporting and checking in.

II. The dangers of non-compliance

Failure to follow pay and time laws can be dangerous for employers as it can lead to costly litigation. The FLSA contains a class certification process whereby a single aggrieved employee can seek to represent all employees in a similar situation in a class action lawsuit.

Under the FLSA, employees can collect damages equal to their unpaid wages. In addition to wage arrears, employees are entitled to “lump sum compensation” equal to damages for unpaid wages if the employer’s violations are found to be intentional. Essentially, employees can recover double the damages for unpaid wages under the FLSA. The FLSA also includes a fee pass-through provision, which requires the employer to pay the plaintiff’s attorney fees in effect. Many state laws impose additional penalties for violations of wages and hours laws.

Canadian employers with employees based in the United States should review their COVID-19 safety policies to confirm their compliance with the FLSA and applicable state laws. Specifically, employers must ensure that employees are paid for any time spent complying with COVID-19 safety protocols before and after their scheduled shifts.

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Susan W. Lloyd