If it’s “Mandatory” then it’s Compensable: Employer Compliance with the Pennsylvania Minimum Wage Act post-Heimbach
A decision this month by the Pennsylvania Supreme Court – Neal Heimbach et al. v. Amazon.com Inc. et al. – could have far-reaching effects for Pennsylvania employers. In Heimbach, the Court held the Pennsylvania Minimum Wage Act (“PMWA”) required that Amazon workers be paid for time spent undergoing mandatory security screening at Amazon warehouses at the conclusion of employee shifts. Significantly, the Court’s analysis makes clear that the wage-mandates of the PMWA are broader than federal wage-and-hour laws. Therefore, Pennsylvania employers should take the time to re-examine their current wage payment practices, especially in the wake of increased administrative protocols being put in place relating to COVID-19 safety measures.
Federal vs. State wage-and-hour standards
In Heimbach, employees in Pennsylvania filed suit against Amazon relating to the security screening practice back in 2013. However, the Heimbach decision comes in the wake of the December 2014, U.S. Supreme Court ruling in Integrity Staffing Solutions Inc. v. Jesse Busk et al., that the Delaware-based firm was not obligated under the Fair Labor Standards Act (“FLSA”) to compensate workers for the roughly 25 minutes a day they spend waiting to undergo a security screening to leave warehouses in Las Vegas and Fenley, Nevada. The Integrity Court determined that the security checks were not a “principal activity” for the jobs and therefore fell within the FLSA exemptions under Portal to Portal Act of 1947 (“Portal Act”).
The U.S. Supreme Court has interpreted the Portal Act as requiring compensation for time spent on activities which are “integral and indispensable” to an employee’s principal activities. According to the Court, “an activity is integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Therefore, employers are not required to pay for the time employees spend on activities occurring before or after (“preliminary or postliminary”) they perform the “principal activities” for which they are employed. By way of example, washing up before or after work is generally not compensable time. However, if the job involves toxic materials, washing up may be integral and indispensable because it involves worker safety and is therefore compensable. See Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956).
After a lower federal court ruled against the Pennsylvania workers in their case, the 6th U.S. Circuit Court of Appeals asked the Pennsylvania Supreme Court to consider whether state employers are liable to pay workers for mandatory screening under the PMWA. The PA Justices in Heimbach determined that they “are not bound” by Busk, distinguishing the federal and Pennsylvania statutes. The Heimbach Court observed that the Portal Act “operates to reduce the amount of wages an employee is entitled to receive,” whereas the PMWA’s purpose is to protect workers’ wages and to “ameliorate employer practices which serve to artificially depress those wages”.
The Heimbach Court further distinguished state and federal laws, holding that under the PMWA, there is no “de minimis” exception to claims. Under federal wage-and-hour precedent, the de minimis doctrine has been in place since 1946, when the U.S. Supreme Court said in Anderson v. Mt. Clemens Pottery Co. that employers do not have to deal with minor wage and hour claims over lost minutes of time.
The Heimbach decision ultimately hinged on the definition of “hours worked”. Although the PMWA does not define “hours worked,” the PA Justices looked to state regulation, which defines the term as time that “an employee must be on site and is required to be on duty”. Since the security screenings at the Amazon warehouse are mandatory, further analysis was not necessary: “[a]ll time spent by the employees waiting to undergo, and undergoing, the security screenings constitutes ‘hours worked,’” the Court wrote. The Court further pointed out that the two exceptions to the PMWA – meal breaks and “employee convenience time” – were clearly not applicable: “[n]either exception is applicable under the facts of this case because, as recognized by the parties, the time Employees spend undergoing the security screenings is not “time allowed for meals”; nor are these screenings done for the convenience of the Employees, as they are required by Amazon of all employees and performed at its exclusive direction.”
The takeaway for PA employers: evaluate your pay practices now to avoid claims later
The Heimbach decision represents a victory for employees’ rights advocates seeking to expand PA wage-and-hour law beyond the confines of the FLSA and Portal Act. The PA Supreme Court has now definitively ruled that there are no “de minimis” exceptions under the PMWA and that essentially any activity “mandated” by an employer for the employer’s benefit is compensable. It remains to be determined how this ruling will effect employee compensation relative to COVID safety protocols. Pre-Heimbach, a Pennsylvania employer could take the position that time spent undergoing safety protocols was not compensable under the theories that the protocols were not an integral and indispensable part of the employee’s principal activities, as well as arguing that the protocols were de minimis. Heimbach dispels both of those arguments. Accordingly, Pennsylvania employers should take a careful look at their policies now to ensure they are do not find themselves facing a class-action wage-and-hour lawsuit.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work envir