February 14, 2023

Happy Valentine’s Day – Now, Where’s My Pay?!

On Valentine’s Day, a class action lawsuit was filed against the Hershey Company. It alleged Hershey had failed to pay a group of employees for all hours worked, as well as overtime. The issue was whether the time employees spent before and after their shift, donning and doffing “sanitary clothing and other protective equipment” was time worked. Time spent on these unpaid activities averaged ten to 15 minutes a day.

If this sounds familiar, there is a good reason. The U.S. Supreme Court (SCOTUS) has ruled on this issue multiple times in the last 20 or so years. In 2006, the U.S. Department of Labor issued an Advisory Memo for its Regional Administrators after a combined ruling in 2005 that found against the employer. However, in 2014, SCOTUS found in favor of an employer that did not pay its warehouse workers for time they spent waiting to go through a security screening each day they left the warehouse.  Why? The Court reasoned that the screening itself was not “integral and indispensable” to the employees being able to do their jobs such as monitoring inventory, stocking shelves, etc.  It was a process the employer put in place to reduce the risk of theft.

Lessons Learned? No matter how this case turns out, it is yet another reminder of this issue that continues to plague employers.  Many jobs require the incumbent to do something before the actual work can begin. A cashier may have to balance or verify the cash drawer before ringing up the first sale. A data entry clerk may have to turn a computer on, log in, and pull up certain files before entering the first record.

Consider your jobs. What tasks must an employee perform, if any, before work can begin or end? If those tasks are performed and not paid, talk to your company’s employment counsel to determine if they are “principal activities” under the Fair Labor Standards Act.

Side story. When I worked in HR in healthcare, an operating room technician asked me this very same question. His shift was 7:00 a.m. to 3:30 p.m. But he was required to arrive by at least 6:45 a.m. to wash up and don sterile gowns before entering the operating room.  At the end of the shift, he was required to remove the scrubs and leave them onsite so they could be cleaned and sanitized for the next day. He asked if he should be paid for that time.  Newbie that I was, I thought it was a great question. My VP of HR and I contacted our legal counsel and, lo and behold, we agreed! Yes, he should be paid, and we started paying all our OR techs for those preliminary and postliminary activities.  That was in the early 90’s! Here we are, 30 years later, still finding the same OOPS’!