The Fair Labor Standards Act (FLSA) and state wage and hour laws require businesses to record and pay their nonexempt employees for all “compensable time,” including certain activities that occur before an employee begins his or her principal activities during the work day. During the COVID-19 pandemic and after retail employees “return to work,” workers may be required (or choose) to engage in certain tasks at the start of their shifts and throughout the workday.
Traditionally, these “off-the-clock” tasks have included security checks upon entering or leaving the store, checking sales receipts, inventory or store-related emails, or shift “hand-off” discussions. In the new workplace, employees may also:
- undergo temperature checks
- engage in frequent hand washing
- wear a mask and gloves
- walk from designated health/safety areas to work assignments
- disinfect work areas
- ensure proper customer physical distancing inside and outside the store
Under the FLSA’s Portal-to-Portal Act, pre- and post-shift activities must be paid if (1) the activity is “integral” and “indispensable” to the employee’s principal activity — maintaining the merchandise and store environment and serving customers; (2) is not “de minimis” (usually 10 minutes or less, but can be aggregated with other pre-shift tasks); and (3) does not fall within FLSA Section 203(o)’s exception for changing clothing, washing or walking to one’s work station.
In Integrity Staffing Solutions v. Busk, the United States Supreme Court overruled the Ninth Circuit to find that warehouse employee security screenings (sometimes called “bag checks”) are not compensable, even if for the employer’s benefit, because such screenings were not an “intrinsic element” of retrieving product from shelves and shipping that product.
As to personal protective equipment (PPE), such as masks and gloves, the Ninth Circuit in Alvarez v. IBP distinguished between “unique” items that are compensable — protective gear such as Kevlar gloves — and “generic” or “non-unique” items that are not compensable — such as hardhats, goggles and hairnets. Although not definitively resolved, an employee’s use of rubber surgical gloves and an N-95 face mask appear to fall into the “generic” category and may also be de minimis, requiring less than a minute to put on or take off. Gorman v. Entergy Nuclear Operations. However, if employees are “mandated by law” to wear masks and gloves or the argument can be made that the workplace health risk is so significant, there may be a case that it is “indispensable” to performing the job.
Several states have their own wage and hour laws that govern “compensable time,” and state law determinations of “compensable time” do not always follow the FLSA. For example, California state wage and hour law does not follow the “intrinsic element” rule of Integrity Staffing Solutions and instead considers any activity during which the employee “is subject to the [employer’s] control” to be compensable time. Frlekin v. Apple Inc. Similarly, California state wage and hour law does not recognize the de minimis doctrine. Troester v. Starbucks Corp.
Those who have experienced a putative class action know how these few minutes can add up when aggregated over the course of a work year and across the entire workforce, particularly when combined with attorneys’ fees, interest, costs and statutory penalties. And, once an activity is deemed “compensable,” normally all activities that follow are compensable as well — i.e., an employee who changes clothes may claim compensation for all activities thereafter such as a temperature check, walking to one’s work station, undergoing an otherwise non-compensable security screening, or waiting to clock in or begin work.
Because routines will inevitably change, retailers should:
- Review timekeeping and pay policies in light of any new pre-shift, post-shift or meal/break period activities. This may present an opportunity to consider and revise workplace policies to account for and align existing pre- and post-shift activities. These policies should be communicated directly to the employees, including the sequence of activities, whether they are required and whether they are compensable.
- Sequentially map the pre-shift and break activities to determine the order, the time each should take and whether each is compensable. For example, the sequence may be that the employee has to wait for his or her temperature to be checked outside, put on a mask and gloves, wait for a bag security check, disinfect the computer or work area, check email and then clock in.
- Consider when in the process an employee will “clock in” and “clock out” and the location of the time clock, card swipe or computer. The physical layout of where these activities are performed in relation to the time entry system can reduce the amount of time spent on compensable pre-shift/post-shift/break activities.
- Determine how to supply masks, gloves and sanitizer/disinfectant and whether those items are reimbursable business expenses if purchased by the employee.
- Review their state’s wage and hour laws to determine whether new routines would be compensable time in their state.
BONUS: Telecommuting – For nonexempt employees who perform some work from home and who will continue to do so (assistant store managers, department managers or corporate), consider (1) the procedures for accurately capturing the employee’s time; and (2) whether the requirement to check emails, reports and updates at the beginning or end of the work day will extend the compensable work day.