October 05, 2021

COVID-19 Testing Creates Wage & Hour Woes

It was reported that on Tuesday, October 5th a class action lawsuit was filed claiming Amazon owed back wages to more than 10,000 workers.

For what? The claim is for the time hourly warehouse workers spent in line since March 2020, for COVID-19 screening. I anticipate similar claims may arise as a result of employers requiring weekly COVID-19 testing.

The case referenced above was filed under state law, as have related cases.  Why not under the Fair Labor Standards Act (FLSA)?  Likely because the U.S. Supreme Court ruled in 2005 that tasks an employee performs before or after the employee starts the actual job (like walking to and from a time clock, donning and doffing a uniform, or protective gear) are only compensable if they are an “integral and indispensable part of the principal activities” of the employee’s job.  The court reached the same conclusion in 2014 when it found that “time spent by warehouse workers waiting to undergo and undergoing security screenings is not compensable under the [FLSA].” The same rationale might apply to COVID-19 testing or screening.  Then again, it might not. It may depend, in part, on the composition of the Court.

That aside, employers should keep in mind that state laws are often stricter than the FLSA. For example, the minimum wage law in Colorado, where the above case was filed, defines “time worked” as all time that an employee is required “to be on the employer’s premises.”

Tips: Be sure you are also complying with all of your states’ wage and hour laws. Other examples where states are stricter than federal include and are not limited to:

  • Exempt v. non-exempt classification
  • Vacation or PTO roll over and payout at termination
  • When final wages must be paid
  • Deductions for lost/damaged company property
  • …and more.

 Want more tips
? Check out FiveL Company’s September 22nd archived webcast, “Wage & Hour Do’s and Don’ts.”  $25 pp 75 minutes.