Standing in line waiting to have your temperature taken – at some point over the last year, most of us have had this experience. At youth sports games, at the gym, at daycare, and of course, at your place of employment. A year ago, at the outset of the pandemic, we warned employers that measuring worker temperatures without paying for the time spent performing this task might lead to wage and hour claims. And it appears that our warning was prophetic. With the boom of COVID-19 workplace lawsuits upon us, some employers are now facing a “long line” of their own – a line of employees who want to sue for waiting time.
Examples of Recent Cases
Recent class and collective lawsuits are starting to reveal a particular trend of litigation where employees are claiming they were not paid for waiting in line for temperature screenings. For instance, a Private Attorneys General Act (PAGA) action filed in California a few months ago alleges (in part) that employees of Santa Fe Mercados were required to “wait in line and submit to mandatory temperature checks for COVID-19 screening prior to clocking into Defendant’s timekeeping system for the workday.” The plaintiffs in this case claim that the time they spent waiting in line to get their temperature checked was working off-the-clock, and as a result, their time was not correctly recorded and they did not receive minimum wage and overtime payments required by California law.
Another case, Abarca v. Cantaloupe Holdings, LLC, which was filed in California a few weeks ago, contains similar allegations. The Complaint alleges that the employer established policies and standard operating procedures to minimize the risk of the spread of COVID-19. As a result, the lawsuit claims, the company required the plaintiff in question and other aggrieved employees to go through a body temperature screening checkpoint process, which required employees to wait in a long line to have their temperature checked. It was only after this process that employees were able to clock in for work. The plaintiff in this claim alleges that the long wait in the temperature screening line resulted in unpaid minimum wage and overtime to a class of plaintiffs.
And these two cases are not unique. A quick review of the wage and hour filings around the country shows that this trend might be here for the foreseeable future.
Status of the Law Regarding Waiting Time
Federal and state courts don’t appear to have ruled on whether employers are required to pay employees for time spent waiting in line to have their temperature taken. U.S. Supreme Court decisions and other recent court decisions provide some guidance on how courts may rule in a wage and hour claim for employee body temperature checks. Under federal law, there are two key questions to determine whether this time is compensable:
- Is measuring an employee’s temperature a “principal activity”?
- Is the time employees spend waiting to have their temperatures taken a “preliminary” or “postliminary” activity?
Is Measuring An Employee’s Temperature A “Principal Activity”?
In 2014, the Supreme Court narrowed the definition of compensable preliminary and postliminary activities. In Integrity Staffing Solutions v. Busk, the Supreme Court held that post-shift security checks for warehouse workers were not compensable under the federal Fair Labor Standards Act (FLSA). The Court explained only activities that constitute a “principal activity” under the FLSA that must be compensated.
Whether an employer must compensate an employee for time spent measuring their temperature is a fact-specific question for each employer. Outside of the COVID-19 context, temperature checks would likely not meet the standard of a principal activity. However, within the COVID-19 context, measuring employees’ temperatures may be akin to situations where employees must put on protective gear in order to safely perform their jobs.
Is The Time Employees Spend Waiting For Temperature Checks A “Preliminary” Or “Postliminary” Activity?
One critical factor in wage and hour claims is defining the beginning and end of the workday. Activities “preliminary” and “postliminary” to principal activities do not have to be compensated under the FLSA. The Department of Labor has adopted the continuous workday rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities. If the waiting time is considered a preliminary or postliminary activity, then it is not compensable under the FLSA. Once again, whether the waiting time is compensable is highly fact-specific for each employer.
Don’t Forget State Law
The analysis discussed above applies to the analysis under the FLSA (and under state law where states that have adopted the FLSA’s principles). But things may be different in other states, California, for example, has aggressively implemented its own wage and hour rules, and one judge recently found that time spent by Apple employee’s while they wait to complete bag checks and anti-theft searches at the end of their shifts is compensable time. In other words, even if the time spent waiting in line for temperature checks is not compensable time under federal law, it still might lead to liability under state law.
What Should You Do?
If your employees continue to spend time waiting for temperature checks every day (or even if they do not presently get temperature checks, but previously did), you should review your practices to determine whether that time should be considered compensable time. While the safest approach is to interpret the FLSA and state laws in a conservative manner and pay employees for time spent waiting to have their temperatures checked, this is an individualized determination each employer will need to make taking into consideration all relevant factors.
These Lawsuits Are Likely The First of Many
There is no doubt that plaintiffs’ attorneys will continue to file lawsuits against employers, including class and PAGA actions, alleging that businesses did not comply pay their employees for the time spent waiting in line to have their temperature checked.
Employers in California and across the country should be aware of the lawsuits that may be coming in the states where you are operating. The plaintiffs’ bar will no doubt take advantage of this opportunity and will file similar lawsuits.
