The Pennsylvania Supreme Court’s ruling that
Security-check time is compensable under state law because companies must pay employees when they’re required to be on site, regardless if they’re engaged in work duties, the state high court ruled July 21. Such time doesn’t need to be paid under federal law.
And perhaps just as important, the court also held that state wage law doesn’t recognize an exception for short time periods that are so trivial they don’t merit compensation, which is known as “de minimis” time.
“The ruling didn’t seem to align with what you’d expect from Pennsylvania,” Jason Reisman, a management-side employment attorney with Blank Rome LLP in Philadelphia. “We’re not Texas, but we’re also not California.”
Employers operating in Pennsylvania should reconsider their compensation and work policies to avoid facing lawsuits fueled by the ruling, such as claims challenging time-card rounding practices, and seeking payment for Covid-related health screening and short tasks done outside of normal work hours, attorneys said.
Recent litigation in California provides a preview for what might be coming to the Keystone State. The California high court in 2018 eliminated the de minimis exception with its Troester v. Starbucks decision. Two years later, the justices held that security waiting time must be paid for in its Frelkin v. Apple ruling.
Workers in California have filed class actions against Amazon, Walmart Inc., and sporting goods company the Merchant of Tennis Inc. this year for allegedly failing to pay them for time spent in health screening related to the pandemic.
Earlier this week, workers at a
Amazon argued in a June filing that the California high court’s Apple ruling doesn’t make Covid screening compensable. Unlike security checks, the health screenings aren’t primarily for Amazon’s benefit, they’re required by state regulations, and they’re done before workers are “fully” inside the facility, the company said.
The Pennsylvania Supreme Court’s ruling, however, creates a different legal landscape than in the Golden State. That decision turned on the security screenings being on the employer’s premises, while the key consideration in the Apple ruling was the workers being under the employer’s control.
In California, the Troester ruling that eliminated the de minimis exception has sparked worker lawsuits based on allegations of doing short tasks after hours, such as responding to emails and texts, said Lauren Teukolsky, an attorney at Teukolsky Law PC who represents workers.
Businesses in Pennsylvania can mitigate the risks of similar lawsuits by instituting policies that prohibit employees from working off the clock, said Jonathan Segal, an attorney who counsels employers at Duane Morris LLP in Philadelphia. Managers should also be trained to not contact employees outside of of work hours, unless it’s for a something that would take mere seconds to deal with, he said.
“De minimis time is reality,” Segal said. “But Pennsylvania joined California in denying reality.”
Workers in California have a big advantage over those in Pennsylvania in the form of the Private Attorneys General Act, a unique law that allows workers to bring representative actions on behalf of other workers and the state.
Proving off-the-clock wage violations for PAGA claims is less burdensome than they are for class action claims, absent a centralized employer policy, said Michael Rubin, an attorney who represents workers for Altshuler Berzon LLP in San Francisco. Nevertheless, Pennsylvania and California both operate on the same general principle in terms of rejecting the de minimis exception, he said.
“The principle is work is work,” Rubin said. “If work is performed, it is compensable. The employer doesn’t get a free ride simply because the work is structured in small time increments.”