Wage And Hour Takeaways From Pa. Security Check Ruling
- Time a nonexempt employee spends waiting to undergo, and undergoing, mandatory security screenings on an employer’s premises constitutes hours worked under the Pennsylvania Minimum Wage Act, or PMWA, and therefore is compensable; and
- There is no de minimis exception to the PMWA.
This is significant for Pennsylvania employers that may have previously relied on the U.S. Supreme Court’s 2014 decision in Integrity Staffing Solutions Inc. v. Busk when making compensation decisions for their employees’ pre- and post-shift activities.
The Pennsylvania Supreme Court has now made clear that all time an employer requires a nonexempt employee to be on its premises is compensable as hours worked, regardless of whether the employee is performing job-related duties on the premises.
The court did not stop there, however, as it broadly defined the contours of what constitutes “hours worked” under the PMWA.
Background of Heimbach v. Amazon
The Heimbach case commenced when Amazon employees filed a class action in Pennsylvania against their employer claiming entitlement to compensation for their unpaid time spent undergoing anti-theft security screenings after clocking out at the end of their shifts.
After the case was consolidated with similar cases in the U.S. District Court for the Western District of Kentucky, the Supreme Court issued its decision in Integrity Staffing Solutions v. Busk.
In Busk, the Supreme Court ruled that time spent by Amazon workers in Nevada going through security screenings (the same security screening at issue in Heimbach) was not compensable under the federal Fair Labor Standards Act because, as amended by the Portal-to-Portal Act, or PTPA, activities that are preliminary or postliminary to a worker's principal activity or activities were noncompensable under the FLSA.
Following the decision in Busk, the Kentucky district court considered whether that case required dismissal of the Heimbach claims under Pennsylvania’s minimum wage law.
The court then ruled that Busk was controlling on the issue of compensability for time spent undergoing the screenings because the PMWA did not contain affirmative language excluding the federal PTPA.
Accordingly, relying on Busk to interpret the PMWA, the court held that the employees did not have a viable claim under Pennsylvania law.
The employees appealed to the U.S. Court of Appeals for the Sixth Circuit and petitioned to certify to the Pennsylvania Supreme Court two controlling questions of Pennsylvania law: (1) whether the security screenings at issue were compensable as hours worked under the PMWA, and (2) whether Pennsylvania law recognized a de minimis exception to the PMWA. The Sixth Circuit granted the petition, and the Pennsylvania Supreme Court granted certification.
The Pennsylvania Supreme Court's Decision in Heimbach
Hours Worked Under the PMWA
In its decision, the Pennsylvania Supreme Court departed from the Kentucky federal court’s ruling and held that all time spent by the employees waiting to undergo, and undergoing, the security screenings constitutes hours worked under the PMWA.
In making this determination, the court quoted its 2010 decision in Bayada Nurses Inc. v. Pennsylvania Department of Labor and Industry to reiterate that the FLSA only establishes “a national floor under which wage protections cannot drop,” and that a state can offer more generous protections — meaning Pennsylvania's high court is not bound by the U.S. Supreme Court’s decision in Busk, which only addressed the federal FLSA and PTPA amendments, and not the PMWA.
Unlike the federal court in Kentucky, the court did not find Busk to be persuasive in interpreting the PMWA, and noted that “Pennsylvania has never statutorily adopted the federal PTPA ... even though the PMWA has been amended six times since its initial passage in 1968.”
As a result, the court declared that the PMWA must be interpreted in accordance with its own terms to address whether time spent by employees for security screenings constituted hours worked.
The PMWA states that all employers must pay their employees “wages for all hours worked.” Although the PMWA does not explicitly define hours worked, the regulation promulgated by the Pennsylvania Department of Labor and Industry defines the term to include the following:
The court found that the plain language of the regulation defines hours worked to include these four separate categories of an employee’s time, all of which constitute compensable hours worked.
In applying the regulation and accepting as true that Amazon required employees to remain on their premises until the security screenings were complete, the court held that all time spent by the employees waiting to undergo, and undergoing, the security screenings constitutes hours worked under the PMWA.
The court explicitly rejected Amazon's contention that only the time that employees are required to be on its premises working can constitute hours worked under the PMWA.
In doing so, the court clarified that all time during which an employee is required to be on the employer’s premises constitutes compensable hours worked, regardless of whether the employee is actually performing job-related duties during that time.
De Minimis Exception
The court in Heimbach also addressed whether Pennsylvania recognizes a de minimis exception to claims under the PMWA.
In 1946, the U.S. Supreme Court in Anderson v. Mt. Clemens Pottery Co. cemented the de minimis doctrine when it addressed whether employees were entitled to compensation under the FLSA for time they spent walking from the time clock where they punched in to their work benches, and back again when they punched out.
The Supreme Court ruled that they were entitled to compensation because that activity met the FLSA’s definition of “working time,” and also recognized that the application of a de minimis rule might have been appropriate when “the minimum walking time is such as to be negligible.”
The Supreme Court found that
The court also observed that working time is involved only when an employee is required to give up a substantial measure of time and effort.
In Heimbach, the Pennsylvania Supreme Court refused to recognize the de minimis doctrine, finding that no amount of time is a “mere trifle” that shouldn't be counted.
The court noted that the de minimis exception articulated by the Supreme Court in Anderson was one of its own judicial creation and was crafted as part of its interpretation of the FLSA.
The court stated that it has never utilized this doctrine to interpret any provisions of the PMWA or its accompanying regulations.
In interpreting the text of the PMWA consistent with its legislatively articulated purpose — to maintain the economic well-being of the state’s workforce by ensuring employees are paid for all time an employer requires them to expend for its own purposes — the court discerned no intent by the Pennsylvania General Assembly to allow a de minimis exception to the PMWA.
The court held,
Implications of Heimbach
The Pennsylvania Supreme Court’s ruling in Heimbach is major news for Pennsylvania employers and employees alike.
Following Heimbach, Pennsylvania employers must pay their employees for time they spend on work premises, even if those employees are not performing job-related duties and even if the time spent is minimal.
This broad holding would not only apply to the security screenings at issue in Heimbach, but other activities that employers require their nonexempt employees to partake in on the premises, such as COVID-19 screenings or tests, changing clothes or uniforms, and setting up or dismantling equipment.
Moreover, the court explicitly confirmed the validity of the four categories of compensable time described in the regulation defining “hours worked.”
According to the court in Heimbach, all time that an employee spends performing any one of these four types of activity constitutes compensable hours worked, regardless of how insignificant or trivial the amount of time is.
Pennsylvania employers who do not wish to run afoul of Heimbach should ensure their policies require employees to record all of their hours worked, even if that time is not within their scheduled working hours.
Employers must effectively communicate these policies to their employees and guarantee that employees are being paid for all of their time worked, including time the employer requires employees to be on the premises, regardless of whether the employees are performing job-related duties.
Enforcement of these policies will be critical, and employers should regularly monitor compliance with such policies.
This momentous decision only widens the chasm of differences that exists between the respective requirements of the PMWA and FLSA. The Pennsylvania Supreme Court has made clear that the PMWA is more protective of employees than the FLSA.
The impact of this decision will affect more than just an employee’s time spent in security screenings.
Though Pennsylvania is unlikely to follow in the footsteps of California to create its own entire wage and hour regulatory scheme, this decision has confirmed some important protections for employees — the PTPA is not applicable to the PMWA and every minute worked is compensable — and undoubtedly will create more risk of claims and class actions.
Pennsylvania employers beware: Now is the opportune time to reevaluate your policies and practices, keeping in mind that the PMWA is not the same as the FLSA.
“Wage And Hour Takeaways From Pa. Security Check Ruling,” by Jason E. Reisman and Rebecca J. Reist was published in Law360 Employment Authority on August 6, 2021. Reprinted with permission.