Here’s hoping employers in states like PA paid nonexempt employees for COVID-19 temperature checks at work. Otherwise…

Technically, Pennsylvania is a Commonwealth. But that’s not really the point of this post. So, I’ll digress.

I tend to overuse the phrase “your mileage may vary” on this blog.

Often, I use it when comparing the laws of different states. But, I also wear out those four words when comparing state to federal law.

And that’s what I’ll do again today.

Under federal wage-and-hour law, also known as the Fair Labor Standards Act, covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek of at least one and one-half times the regular rate of pay.

There are some exceptions. One is for infrequent and insignificant periods of time beyond the scheduled working hours, which cannot, as a practical matter, be precisely recorded for payroll purposes. Think: checking an email or sending a text. Maybe waiting in a short security line. Employers are free to disregard that time as de minimis (insignificant).

But that’s under federal law.

But, under state law, say it with me, “your mileage may vary.”

Time worked is time paid.

One company just found this out the hard way a few weeks ago when the Pennsylvania Supreme Court ruled that the Pennsylvania Minimum Wage Act does not have a similar de minimis exception. Instead, employers must compensate employees for any and all time that the company requires them to be at work. Thus, any time employees spend at work waiting to undergo and undergoing mandatory security screening counts as hours worked.

Now the facts of this case date back about 10 years. But, imagine if your PA business has employees queuing to get temperature checked or go through some other COVID-19 safety protocol, and you didn’t pay the non-exempt one for this time spent waiting.

One employee maybe isn’t such a big deal. But, when the screening impacts dozens or hundreds or thousands of employees who are already working over 40 hours per week…woo boy!

(And if that time spent waiting isn’t de minimis, well, there could be problems under federal law too.)

Employer takeaways.

If you operate in a state, err Commonwealth (whatever), like Pennsylvania and have not paid non-exempt employees for time spent waiting in COVID-19/security lines, consider these steps:

1. Analyze and calculate the time employees may have spent going through COVID-19 screening,
2. Calculate the wages that you may owe, and above all
3. Consult outside counsel for help right away.