(An edited version of this article written by Joseph H. Tringali appears in the April 2021 edition of New Jersey Lawyer focusing on legal issues during a pandemic. Read the full issue here [login required].)
As we rang in the new year in 2020, who could have imagined that it was going to become commonplace for lawyers to be making court appearances and taking depositions on the laptop in the living room, with dogs barking in the background and kids learning math in the kitchen?
The year 2020 has taught us to be problem solvers, quick to adapt to ever-changing court rules and regulations. While many things have changed because of COVID-19, the federal and state wage and hour requirements imposed upon employers have remained.
As law firms and other businesses reacted to the unwelcome presence of COVID-19 and figured out ways to maintain an income stream to pay employees, apply for government loans, and maintain business operations, wage and hour lawsuits were being decided and new lawsuits were being filed.
For example, in the matter Vaccaro v. Amazon.com.dedc, LLC, plaintiff identified herself as a warehouse worker who was subject to unpaid post-shift security screenings by the defendant in violation of the New Jersey Wage and Hour Law. Plaintiff argued that she should have been paid for post-shift screenings as well as time spent undergoing screenings when she went on lunch breaks.
By way of motion made pursuant to Federal Rule of Civil Procedure 12(c), Amazon argued that post-shift security screenings were noncompensable because the Supreme Court held in the matter Integrity Staffing Solutions, Inc. v. Busk (Busk I), 574 U.S. 27 (2014), that the same post-shift security screenings at issue in the case were noncompensable “postliminary” activities under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act, 29 U.S.C. § 251 et seq. and further argued that the same FLSA standard should be applied to claims made under New Jersey law because New Jersey law was “patterned” on the FLSA.
In the opinion entered on June 29, 2020, the District Court held that “(1) time spent undergoing mandatory security screenings at the end of the workday must be counted as “hours worked” when calculating wages under the New Jersey Wage and Hour Law; (2) the NJWHL does not incorporate the federal Portal-to-Portal Act, such that mandatory post-shift security screenings are not excluded as “postliminary” activities; and (3) time spent on meal breaks during the course of the workday is not required to be counted as “hours worked” under the NJWHL.”
Plaintiffs’ counsel made a motion to amend the complaint to allege wage and hour violations directly related to COVID-19 pre-shift screenings, which is still pending as this article is being written. Specifically, in a proposed Second Amended Individual and Class Action Complaint, plaintiffs allege that “Defendant required/requires Named Plaintiff [] and COVID-19 Class Plaintiffs to submit to COVID-19 screenings on Defendant’s premises prior to clocking in.”
The proposed complaint states that the “COVID-19 screening includes but is not limited to taking Named Plaintiff[‘s] and COVID-19 Class Plaintiffs’ temperature and asking them questions, including but not limited to whether they have been in contact with any person infected by COVID-19.”
The complaint further alleges that defendant did not and does not compensate employees for time that it took and that it still takes to make it through the COVID-19 screening process in violation of New Jersey’s wage and hour law. Practitioners should continue to monitor this case as it could impact the way businesses compensate certain employees.
In Haro v. Kaiser Foundation Hospitals, et al., which was removed from the California state court to the United States District Court, Central District of California, the defendant, in response to the pandemic, “began requiring some [of] its hourly employees to arrive at least 15 minutes prior to the start of their shift so that they could undergo medical screenings before being allowed into their worksites. The employees were not compensated for this time.”
The District Court remanded the matter and held that the “issue to be decided [under California law] is whether the putative class members are subject to Kaiser's control during these 15 minutes. If the answer is yes, then they are entitled to compensation for that time.”