Not Another Class Action Seeking Payment For COVID Testing!–Employer Compulsion The Key?

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The thorny issue of what constitutes “working time” is always causing headaches for employers and the pandemic period has increased these concerns greatly, with demands made for compensation for testing time, vaccination time. A class action has been recently filed, seeking compensation for workers in a meatpacking plant who want pay for time spent being looked at for COVID-19 symptoms prior to the start of their shift and during lunch time. The case is entitled Villa v. Cargill Meat Solutions Corp. and was filed in the Court of Common Pleas in Philadelphia, Pennsylvania.

The workers allege that the requirement of mandatory testing for COVID-19 required workers to report before their shifts or miss their lunches, but they were not paid for that time. The Complaint asserts that the “plaintiff and production workers were not paid for significant amounts of time between the start of the required COVID screening process, and when they were clocked in for pay purposes. Cargill failed to pay for all hours the production workers worked, beginning with the time production workers were required to be on Cargill’s premises to undergo the COVID screening process until they were clocked in, in violation of Pennsylvania law.”

As has been written about many times, the nature of the meatpacking business required the plant and employees to keep working as the pandemic raged. In addition, the workers were in very close proximity to each other on the lines. No social distancing at all. Thus, after an outbreak, the Company began mandating that all workers be checked for symptoms prior to evert shift and again at the end of the lunch breaks. There were often long lines for these checks, the Complaint alleges.

The Complaint alleges, significantly, that “production workers could be subject to discipline if they did not arrive ready at the workstation in time for their production work to start. Accordingly, the addition of the COVID screening process required production workers to arrive at work earlier than they had before the implementation of the examinations. Such time was uncompensated.” The workers had to cut short their lunch periods so they could get tested and be back on the line at the assigned time.

The suit claims that since this screening process was a required and an essential component of the employees’ job duties, the time became compensable. If the screening time pushed the worker(s) to beyond forty hours in the week, then overtime would be due. The plaintiffs also referenced a July 2021 Pennsylvania Supreme Court decision (Heimbach v. Amazon) which concluded that mandatory security screenings prior/after each shift were compensable.

The Takeaway

To me, the fact of whether there was or was not employer compulsion is the key issue here. As I have written several times–when it comes to working time issues, especially preliminary or postliminary activity, any element of employer compulsion or requirement will convert that time into working time. Also, there is the cogent argument that the activity is for the benefit of the employer, to ensure smooth production and operation, rather than for the employees, although there is naturally some benefit to the workers knowing they do not have COVID.

Good case to settle quickly…

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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