The California claims appear to have some analogous precedent in recent California unpaid wages lawsuits involving mandatory security checks. In 2020, in Frlekin v. Apple, Inc., the Ninth Circuit upheld a California Supreme Court decision that held that, under California law, employees must be paid for time spent waiting for and undergoing mandatory bag searches. The FLSA claims are important because Walmart is, of course, a national employer. That argument is going to be a heavier lift for the workers.
Walmart, through its spokesman, has claimed that workers were paid for time spent undergoing COVID screenings through an automatic addition to their paychecks. Early in 2020 the company reportedly announced that it would pay employees for temperature check time.
Haro v. Walmart
Amado Haro worked as an hourly, non-exempt employee at a Walmart store in Merced, California. Rochelle Ortega, the other named plaintiff in the unpaid wages lawsuit, worked as an hourly, non-exempt employee at a Roseville, California Walmart store. They were required to clock-in and clock-out each day. Prior to clocking-in they, like other hourly employees at Walmart’s retail stores and fulfillment centers, were required to undergo a physical and medical examination to screen for COVID-19. They were not allowed to clock-in for the day until they passed the examination.
Employees were required to arrive at Walmart at least 30 minutes before the start of their scheduled shifts so that they could complete the screening with enough time to clock-in on time. The screening process involved another Walmart employee taking each employee’s temperature and asking a series of health questions. If the initial examination raised issues, that employee was moved to another section where a second examination occurred. If the employee failed the second screening, he or she was sent home.
On average, the COVID-19 screening took 10 to 15 minutes. During that time, workers were subject Walmart’s control and had to follow instructions. The screening was not optional. Employees were required to comply under threat of discipline, including possible termination.
California labor law
California Industrial Welfare Commission Wage Order No. 7 provides that “Every employer shall pay to each employee . . . not less than the applicable minimum wage for all hours worked in the payroll period.” The Wage Order further provides that “hours worked’ means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.
In Frlekin, the Ninth Circuit held that time spent on the employer’s premises waiting for and undergoing required security searches was compensable as “hours worked” within the meaning of Wage Order 7. No decision appears to have yet dealt with the question of whether time waiting for or undergoing required COVID-19 screenings is sufficiently similar for the same Wage Order 7 rule to apply. The Complaint, however, focuses on the degree to which Walmart controlled the employee’s behavior during the screenings and did not permit them to use their time for their own purposes. Courts do not always employ analogous reasoning, but there is an argument for them to do so in this case.
The Fair Labor Standards Act
The federal FLSA requires that employees be paid at least the minimum wage for all time for which an employee is “suffered or permitted to work.” A workday begins when an employee starts a principal activity of the job and ends when he or she finishes the last principal activity of the day. Under federal law, the essential issue is not employer control, but whether an activity is a “principal activity” of the job.
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The fact that California law appears to be more protective of employee rights than federal law does not create a legal conflict. If that outcome is adopted in Haro, with respect to COVID checks, the problem would be a practical one. Different state laws would ultimately determine whether Walmart workers throughout the country would be paid for mandatory temperature check time. The Eastern District of California may never reach the legal question, however, if Walmart demonstrates that the workers were paid for screening time through an automatic addition to their paychecks.