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July 22, 2022

Federal District Court Finds Pre-Shift COVID Screening Time Not Compensable Under FLSA

A federal district court in California has answered another important COVID-related legal question.  In a case of first impression, the question before the Court was whether time spent by hourly employees receiving pre-shift COVID screening was compensable under the Fair Labor Standards Act (FLSA). (Pipich v. O’Reilly Auto Enterprises, LLC)

Plaintiff, a non-exempt truck driver, filed a collective action claim alleging that the time he and fellow co-workers spent participating in employer required daily COVID health screening conducted on employer’s premises was compensable under the FLSA. The total time spent in the screening process often exceeded five minutes, which included waiting time. Under the FLSA, time spent in pre-shift activities is only compensable if it is “integral and indispensable” to the employee’s “principal activities or activities which [the] employee is employed to perform.”

Noting the Department of Labor’s regulations that “[t]he `principal’ activities referred to in the statute are activities which the employee is `employed to perform,'” the Court found that, “[p]laintiff’s job duties included loading and transporting automobile parts from the distribution center to stores throughout the southern California region.” And that, a “pre-shift COVID screening is not the “principal activity or activities which [the] employee is employed to perform.” In other words, the employer did not hire the employees to undergo health screenings, but instead to load and transport products to stores.

While the Court’s decision may close the loop on another federal-level pandemic-related open question – making it clear that the compensability of time spent in employer-mandated COVID-19 screening activities outside of regular working hours are not compensable under the FLSA – it is likely the situation would be viewed differently under California law.

Under California law, employers are liable for all the time the employee is subject to the control of the employer. In the past, certain small amounts of time (e.g., opening the facility or locking up) were considered “de minimis” (i.e., too trivial or minor to merit consideration) and were not counted as hours worked. However, the California Supreme Court has made clear that even time considered “de minimis” must be compensated when the work performed is done on a regular basis or as part of the job. However, because the Court is unclear as to what might be considered de minimis, it is recommended that employees be paid for all time worked, including short periods of time for required pre/post duties (e.g., employer-mandated COVID-19 screening); even if it is a small amount of time and/or doesn’t occur regularly.

Members with questions about the compensability of COVID-related screening activities outside of regular working hours should contact Western Growers.