Pennsylvania Employers Alert – Security (And Other?) Screening Time Is Compensable

The Pennsylvania Supreme Court recently held that workers must be paid for the time spent waiting in line and undergoing a security screening process. Of note, the principles in this holding have broader application and, in the context of the pandemic, would likely require Pennsylvania employers to pay for COVID-19 screening time.

In In re Amazon.com, Inc., the Pennsylvania Supreme Court was asked to decide whether the time spent waiting for and undergoing a security screening is compensable time under the Pennsylvania Minimum Wage Act. In that case, hourly warehouse workers were required to undergo an anti-theft security screening process at the end of their shift, consisting of metal detectors, bag/personal item searches, and a secondary screening process if the metal detector was triggered.

This time was not compensable under federal law. Under the federal Fair Labor Standards Act, as amended by the Portal-to-Portal Act, activities that are preliminary or postliminary to the employee’s principal activity, even if required by the employer, are not compensable. Rather, as the U.S. Supreme Court has stated, only those activities that are an “integral and indispensable part of the principal activities” – meaning the duties for which the employee was hired to perform – are compensable. Separately, pursuant to the de minimis exception to the FLSA, an employer is not required to compensate employees for insignificant and infrequent periods of time worked beyond the regularly scheduled hours.

The Pennsylvania Supreme Court, however, found that these federal rules do not apply to the Pennsylvania Minimum Wage Act – that the federal rules establish a “floor” and that the state law was intended to offer greater protections. First, the definition of “hours worked” under the state law includes all time that the employee is required to be on the employer’s premises, which would include the mandatory screening time. Second, Pennsylvania law does not recognize the de minimis exception.

Although this case dealt specifically with security screening, the principle that, under Pennsylvania law, employees must be paid for all time required to be spent on the employer’s premises means that Pennsylvania employers likely must also pay employees for the time spent in COVID-19 screening when first arriving at work. Many employers implemented protocols that required employees to answer certain questions and/or undergo a temperature check before starting work. This time, according to the Pennsylvania Supreme Court’s analysis, is likely compensable.