The Pennsylvania Supreme Court rejected the notion that certain preliminary or postliminary activities that may be noncompensable under the FLSA are also noncompensable under the PMWA.

On July 21, 2021, in Heimbach, et al. v. Amazon.com, et al., No. 43 EAP 2019, the Pennsylvania Supreme Court held that employees must be paid for time spent waiting for and then undergoing mandatory anti-theft security screenings on the employer’s premises after clocking out at the end of their shifts. In so holding, the Pennsylvania Supreme Court concluded:

1. The time the employees were required to remain on the employer’s premises at the end of their shift constituted hours worked under the Pennsylvania Minimum Wage Act (PMWA).
2. There is no de minimis or inconsequential exception to hours worked under the PMWA.

With regard to whether the time at issue was compensable under the PMWA, the Pennsylvania Supreme Court rejected the analysis of the Supreme Court of the United States in Integrity Staffing Solutions v. Busk relating to the same facts under the Fair Labor Standards Act (FLSA) also involving Amazon employees. In Busk, the U.S. Supreme Court found that the time employees spent waiting for and undergoing security screening after their shift was not compensable under the FLSA because it was postliminary to the employees’ work and was not integral or indispensable to the employees’ principal activities.

Federal Versus Pennsylvania Law

The Pennsylvania Supreme Court rejected the notion that certain preliminary or postliminary activities that may be noncompensable under the FLSA are also noncompensable under the PMWA. Instead, the Pennsylvania Supreme Court looked to the definition of “hours worked” under regulations promulgated by the Pennsylvania Department of Labor under the PMWA, 34 Pa. Code § 231.1

The definition of hours worked under the regulations includes “time during which an employee is required by the employer to be on the premises of the employer.” Relying on this language, the Pennsylvania Supreme Court found compensable the time spent by the Amazon employees waiting for and then undergoing anti-theft security screenings after clocking out but while required by Amazon to remain on the employer’s premises.

The Pennsylvania Supreme Court did not determine whether the time at issue would fall under the other circumstances covered by the regulation, such as when employees are “on duty” or “permitted to work.” However, based on the words and music of the Pennsylvania Supreme Court’s analysis in Heimbach, employers should anticipate that these circumstances will be construed broadly, which leads to the second issue in the Heimbach case.

On the Clock or Inconsequential?

Under the FLSA regulations, there is a de minimis doctrine. More specifically, in limited circumstances, an employer may not be required under the FLSA to pay for what could be described as inconsequential amounts of working time or, as characterized by the U.S. Supreme Court, “trifles.”

There is no bright-line rule for what qualifies as a de minimis amount of time, but some courts have applied this exception under the FLSA to intervals of a “few seconds or minutes.” However, the Pennsylvania Supreme Court in Heimbach found that a de minimis exception would frustrate the “unambiguous” intent of the PMWA: Employers must compensate employees for all time worked, no matter how insignificant. In other words, it was irrelevant if an employee spent only a few moments waiting in line and undergoing the security screening; that employee was still entitled to compensation for their time.

What This Means for Employers

The holding of Heimbach is clear: Pennsylvania employers must pay nonexempt employees for all time the employer requires employees to be on the premises. This would not include time where the employees are permitted to leave the premises but choose to remain on the premises for their convenience, for example, meal breaks or socializing with colleagues.

While the Pennsylvania Supreme Court’s decision in Heimbach deals with screening of employees after their shifts, the same holding likely would apply to screenings required of employees by their employer on the employer’s premise before their shifts. Depending on the circumstances, this may include temperature, security and other screenings.

The absence of a de minimis exception under Pennsylvania law may be particularly relevant to hours worked by nonexempt employees off the employer’s premises, for example, remote work at home before or after their shifts on site.

Employers are encouraged to reevaluate their policies and practices in light of the Heimbach decision to make sure Pennsylvania employees are paid for all the time when they are required to be on the employer’s premises. Employers also are encouraged to reevaluate their policies and practices relative to work which may occur off of the employer’s premises, for example, email communications which would be considered work. This recommendation also applies to employees outside of Pennsylvania as we see a predation of off-the-clock class action claims across the country.

For More Information

If you have any questions about this Alert, please contact Jonathan A. Segal, Caroline M. Austin, Danielle M. Dwyer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.