On October 30, 2025, the Nevada Supreme Court issued an important decision in Amazon.com Services, LLC v. Malloy when it concluded that Nevada’s wage and hour laws do not incorporate the federal Portal-to-Portal Act of 1947 (PPA). 29 U.S.C. §§ 251–62. This decision adds a layer of complexity to employers’ continued attempts to comply with myriad differences in federal and state wage and hour laws across the country.
During the COVID-19 pandemic, Amazon implemented a company-wide policy requiring employees to undergo COVID-19 screenings prior to each shift. Dwight Malloy, an hourly, non-exempt warehouse employee for Amazon, filed a putative class action lawsuit in the U.S. District Court for the District of Nevada, alleging that he and others were not, but should have been, compensated for time spent undergoing those pre-shift screenings. This lawsuit is analogous to a number of others alleging similar claims under other states’ wage and hour laws, including Arizona’s, California’s, and Illinois’.
Under the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) as enacted in 1938, “hours worked” included all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, as well as any additional time the employee is allowed (i.e., “suffered or permitted”) to work. The PPA later amended the FLSA to clarify the distinction between compensable and non-compensable time. In relevant part, Section 254 of the PPA provides that employers are not required to pay for time employees spend on activities that are “preliminary” or “postliminary” to their principal work duties—i.e., activities that occur before or after tasks that are an “integral and indispensable” part of the employee’s principal work. Courts have held that non-compensable preliminary or postliminary time includes (among other activities) walking between the entrance to the workplace and an employee’s actual workstation, clocking in or out (and waiting in line to do so), and changing clothes if not required by law or for the particular job.
Nevada’s state wage and hour statutes also require employers to pay their employees for each hour worked. See NRS 608.016; NRS 608.018; Nev. Const. art. 15, § 16(1). Unlike the PPA, however, Nevada law does not include an express, blanket provision regarding non-compensable activity. Nevada law contemplates only narrow exceptions to its rule that employees be paid for all hours worked (e.g., domestic worker sleep and meal periods).
Amazon moved to dismiss the Malloy complaint, arguing that Nevada law incorporates the PPA’s amendments to the FLSA, and because COVID-19 testing is a preliminary activity, it is not compensable “work.” The district court denied Amazon’s motion, holding that Nevada law did not incorporate the PPA and, therefore, its employees should have been compensated for pre-shift screening times. The court did not address whether COVID-19 screening is, in fact, a preliminary activity under the PPA. Amazon promptly filed a motion for certification of interlocutory appeal or, in the alternative, to certify questions of law to the Nevada Supreme Court. The district court opted for the latter approach and certified the following question: Does Nevada law incorporate the PPA?
Amazon argued to the Nevada Supreme Court that the PPA’s exceptions to compensable work must be incorporated into Nevada law because Nevada modeled its wage and hour laws on the FLSA after Congress amended the FLSA through the PPA’s enactment. Malloy argued, on the other hand, that the Nevada legislature intended to deviate from the FLSA on this issue because the PPA and Nevada law contain materially different exceptions to compensable work and the text of Nevada law lacks the PPA’s broad exclusion of certain activities from compensable time.
The Nevada Supreme Court agreed with Malloy. The PPA expressly allows employers to exclude preliminary and postliminary work from compensable time, whereas Nevada law contains no such language. In fact, Nevada wage and hour law provides more protection for workers because it identifies only specific, narrow instances when work need not be compensated. Thus, according to the Nevada Supreme Court, the plain language of Nevada’s wage and hour laws “does not evince legislative intent to mirror the PPA[.]” Additionally, the fact that the Nevada legislature has amended its wage and hour laws multiple times to better align them with the FLSA, but has never included any language consistent with the PPA, was also persuasive.
The Malloy decision is the most recent development in a series of cases showing how courts across the country grapple with whether state wage and hour statutes follow the FLSA, including whether they incorporate the PPA’s compensability provisions. For instance, in June, the Seventh Circuit certified a nearly identical question to the Illinois Supreme Court in a case involving the compensability of COVID-19 screening time under the Illinois Minimum Wage Law. Also, in May 2025, the Second Circuit asked the Connecticut Supreme Court to answer whether employees must be compensated for time spent going through mandatory workplace security screenings under the state’s wage and hour laws, with the central question in that case being whether Connecticut law incorporates the PPA’s provisions.
Employers should be aware of the Malloy decision, particularly if they have employees in different states. The decision demonstrates how jurisdictions may differ with respect to their understanding of “compensable” work, and why employers cannot assume that they are in compliance with state law by following traditional approaches under the FLSA. We will continue to track developments in this rapidly evolving area of law.
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