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Law360 (April 16, 2021, 1:32 PM EDT ) Victoria's Secret has unlawfully denied employees compensation for time spent in mandatory off-the-clock COVID-19 temperature screenings, a proposed class said in California federal court in a lawsuit against the lingerie and clothing chain.
In a complaint Thursday, former employee Monique Tirado accused Victoria's Secret Stores LLC and parent company L Brands Inc. of violating California labor law by requiring employees to undergo temperature screenings before clocking in and not paying them for the time spent in the checks.
"Defendants' conduct violates California law by knowingly and willfully requiring plaintiff and class members to perform work and/or remain on duty for the benefit of defendants while off the clock," Tirado said in the complaint.
By not compensating for the screening time, Victoria's Secret failed to pay all minimum wages and for all hours worked, and failed to pay all wages owed upon separation and provide accurate wage statements, Tirado alleged.
Tirado worked for Victoria's Secret in Visalia, California, from November to December 2020, according to her complaint. The company paid her an hourly rate of $14, and she typically worked four days a week, the complaint said.
Before clocking into each shift, Tirado and other employees had to undergo temperature screenings, a practice that began in March 2020, the complaint alleged. This would take "minutes, and sometimes even longer," she alleged.
"This time spent waiting for temperature checks is compensable, but nevertheless goes unpaid," the complaint said. "As a result of these policies, defendants deny plaintiff and class members compensation which they are lawfully owed resulting from the additional off-the-clock, preshift work."
Tirado is seeking to represent a class of nonexempt hourly employees who worked for Victoria's Secret in California at any point since March 2020. More than 100 individuals would be eligible to join the class, according to an estimate in the complaint.
Victoria's Secret joins a growing list of companies that have faced employee lawsuits over COVID-19 screening procedures. Walmart employees in California and Arizona have sued in federal court alleging that the company owed them wages for time spent in the screenings, and employees of The Merchant of Tennis Inc. hit the tennis retailer with similar claims in California federal court in March.
Legal observers have questioned whether COVID-19 health screening time is compensable, with some on both the management and worker sides suggesting employers err on the side of caution.
The U.S. Centers for Disease Control and Prevention has said on its website that screenings are "an optional strategy that employers may use," but that they "will not be completely effective" because asymptomatic individuals could have COVID-19 with no fever. The agency recommended that workers "self-screen prior to coming on site."
Counsel for Tirado did not immediately respond to a request for comment.
Spokespeople for Victoria's Secret and L Brands also did not immediately respond.
Tirado is represented by Carolyn H. Cottrell, Michelle S. Lim and Ori Edelstein of Schneider Wallace Cottrell Konecky LLP.
Counsel information for Victoria's Secret and L Brands was not available.
The case is Tirado v. Victoria's Secret Stores LLC, et al., case number 1:21-cv-00636, in U.S. District Court for the Eastern District of California.
--Additional reporting by Jon Steingart, Hannah Albarazi and Lauren Berg. Editing by Vincent Sherry.
For a reprint of this article, please contact reprints@law360.com.
