Walmart employees in several states are suing their employer, alleging they weren’t paid for the time they spent submitting to mandatory COVID-19 screenings before their shifts.
Starting in the spring of 2020, Walmart required its workers to submit to COVID-19 screenings starting work, according to a suit filed last month in Arizona federal court by attorneys Todd Werts, Bradford Lear and Anthony Meyer of Lear Werts LLP of Columbia, Missouri. The firm has a similar federal lawsuit against Walmart in Missouri. Walmart is facing the same allegations in a federal suit filed in February in California by attorneys Matthew Parmet of Walnut, California, and Don Foty of Houston. The plaintiffs are seeking class-action status.
Werts told Arkansas Business that he thought Walmart’s COVID-19 screening for workers was “great.” The problem, he said, was that the screenings took time from employees who weren’t paid for it.
“It’s time that the employees have to be on the premises under the control of the employer, and … under classic wage-and-hour economics, that time has to be compensated,” Werts said.
A Walmart spokesman said in an email to Arkansas Business that it paid employees for the screening time.
“All hourly associates have extra COVID screening time systematically added to their daily shifts and paychecks,” Randy Hargrove, Walmart’s spokesman, said via email. “This is in addition to our manual process for adding extra time if there ever is a reason this additional time is not sufficient.
“We will respond as appropriate with the court,” he said.
In November, Walmart started adding 5 minutes to each employee’s daily recorded time to “partially compensate for the screenings,” the Arizona plaintiffs said in their suit. “This 5-minute addition is insufficient to fully compensate the affected Walmart employees… .”
No effort was made to pay employees for screening time before November, the lawsuit said. Workers were required to arrive before their scheduled shift to complete a questionnaire and be screened. Employees typically stood in line with others, waiting for a person to conduct the screening, the suit said.
If employees failed the initial exam, they were asked follow-up questions. And if they passed those, they were allowed to work; if not, they were sent home.
Employees estimated it took 10-15 minutes on average to go through the process. And they said they couldn’t clock in until they completed it.
The employees didn’t have a choice on whether to submit to the screening. “Indeed, Plaintiffs faced the threat of discipline, including possible termination, if they failed to comply,” the lawsuit said.
The plaintiffs are seeking an unspecified amount of damages. In Arizona, plaintiffs said Walmart violated Arizona wage law. The workers also said Walmart benefited by not paying for all their time. Walmart hadn’t filed an answer to the lawsuit as of Wednesday morning.
Walmart, however, could argue “that this screening is preliminary to their work, no different than queuing up at the time clock, not integral and indispensable to the work,” Dan Herrington, partner in the Labor & Employment Litigation Section of Friday Eldredge & Clark in Little Rock, said via email to Arkansas Business. He reviewed the Arizona complaint for Arkansas Business.
He said a comparison could be made to an Amazon warehouse case where the U.S. Supreme Court ruled that post-shift screenings done to reduce theft were not “work.” “Screening employees to prevent them from bringing in COVID is no different than screening employees to keep them from taking out stolen merchandise,” Herrington said.
He also pointed to a case from the 11th Circuit Court of Appeals where judges decided that the time spent by construction employees going through airport security to get to their worksite wasn’t compensable, partly because the Federal Aviation Administration required the screenings.
“If the screening was required or strongly suggested by some governmental authority, the employer has a better argument that this is not for its benefit,” Herrington said.
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