Employers must compensate employees for their time spent performing the “principal activities” of the employee’s position. Employers must be paid for this time even if such activities occur before the start of a shift or after the conclusion of a shift. For example, workers that are required to wear protective equipment in order to perform their jobs must be paid for the time that is required to don the equipment before their shifts and to remove the equipment at the conclusion of their shifts. Likewise, employees must be paid for the time spent waiting for computers and other equipment to “boot up” when the use of computers and equipment is an “integral and indispensable” part of their jobs. Many employers fail to compensate employees for such activities resulting in individual and class action lawsuits under the Fair Labor Standards Act (‘FLSA’) and state wage and hour laws.
The emergence of COVID-19 has compelled many employees to spend significant time “off the clock” to ensure a safe workplace. Should employers be required to pay employees for time spent in activities designed to protect the health and safety of customer, clients and co-workers? A group of correctional officers who recently filed suit against their employer for unpaid hours believe that the answer is “yes.”
In Evans et al v. Dart, 1:20-cv-02453 (N.D.Ill. April 21, 2020), a group of correctional officers argue that a principal activity of their jobs is to ensure the health and safety of inmates incarcerated at the facility in which they work. Due to COVID-19 and their exposure to inmates were are quarantined or known to be infected with the virus, they argue that ensuring the health and safety of inmates require that they sanitize the uniforms, gear, PPE and vehicles on a daily basis. They argue that this extra time spent in carrying out integral and indispensable part of protecting the inmates and their co-workers and should be paid by the employer. This case is pending in the Federal District Court of Illinois and the court has yet to rule on the merits of the correctional officers’ claims.