A new trend in wage and hour litigation has emerged: employees who are required to wait in long lines to get their temperatures taken before clocking in are claiming that their wait times are compensable under state and federal wage and hour laws. Employers who implement such practices should have an understanding of the relevant laws in order to avoid litigation.
The Supreme Court has said that only “principal activities” are compensable under the Fair Labor Standards Act (FLSA), which are defined as those activities that an employee is employed to perform, including all activities which are an integral part of their principal activities. Under this definition, an employer may be obligated to pay an employee for time spent performing activities outside of their regular shift times. However, the FLSA does not require employers to compensate employees for activities that are considered “preliminary” or “postliminary” to their principal activities.
It is currently unclear whether time spent waiting for a temperature check qualifies as a principal activity. However, some previous court decisions suggest that it might. For example, the following analogous activities were deemed compensable under the FLSA:
- Putting on protective gear before starting work
- Showering and changing clothes before leaving work at a power plant
- Going through a security screening before going into work as a security guard at a prison
By contrast, some courts have held that similar conduct was not compensable under the FLSA. For example, some case law would suggests that because COVID-19 is a threat to the general public, and is not specific to these employees, temperature checks do not provide a benefit that is specific to the employer, and therefore not a “principal activity” of the employees.
At the moment, it remains an open question whether temperate checks are compensable under the FLSA. There is no bright line rule as to whether or not an activity is considered “preliminary” or “postliminary.” This is a highly fact intensive question, and employers should consult with an attorney before determining that an employee is not entitled to compensation for activities done outside of their ordinary scheduled shifts.