By Max Kutner

Law360 (February 24, 2021, 2:07 PM EST ) Walmart Inc. violated federal and state labor law by failing to pay workers for time spent on mandatory pre-shift COVID-19 screenings, employees claimed in a putative class and collective action in California federal court.

In a complaint filed Tuesday, current and former Walmart employees claimed that the retail giant's policy of checking temperatures and asking questions before they clocked in each shift resulted in a failure to pay overtime and for all hours worked, in violation of the Fair Labor Standards Act and California labor law.

Walmart "implemented an illegal policy requiring its nonexempt workers to undergo a COVID-19 screening each shift without pay," the complaint said. "This physical and medical examination constitutes compensable time that was worked by the plaintiffs and class members."

Walmart employee Amado Haro and former employee Rochelle Ortega filed the suit. After the onset of the pandemic, Walmart began requiring all hourly, nonexempt employees to go through an onsite check for symptoms before each shift, their complaint said.

"The employees are required to arrive at Walmart at least 30 minutes prior to the start of their scheduled shift so that they can complete the COVID-19 screening with enough time to clock in by the start of their scheduled shift," the complaint said.

For screenings at retail stores, employees would line up and a Walmart employee would take their temperatures and ask questions such as whether they had any trouble breathing, coughing, a runny nose or chest pain, according to the complaint. The screener would also ask about any recent travel and whether employees had been exposed to someone with COVID-19, the complaint said.

If they passed the examination, employees would then receive stickers and personal protective equipment, according to the complaint. Only then could they clock in, and they typically would have to walk to the opposite end of the store to do so, the complaint said.

Employees who failed the screening would have to go through a second examination with follow-up questions before clocking-in, the lawsuit claimed. The process would take 10 to 15 minutes, or longer if there was a line, according to the complaint.

Walmart fulfillment centers have a similar preshift screening process involving questions, temperature checks and PPE, the complaint said.

Haro and Ortega said the examinations should be compensable time worked because employees are under Walmart's control during the screenings.

"They must answer questions, submit to have their temperature taken and wear masks and gloves," the complaint said. "In other words, Walmart directs, commands and restrains its employees during the COVID-19 examination; prevents them from using that time effectively for their own purposes; and they remain subject to Walmart's control during the examination."

Haro and Ortega are seeking to represent an FLSA class of all current and former hourly Walmart employees who underwent a COVID-19 screening during at least one week in the past three years. They are also seeking to represent a California class of all of those employees who did so in the Golden State in the past four years.

A Walmart spokesperson said in a statement to Law360 Wednesday, "All hourly associates have extra COVID screening time systematically added to their daily shifts and paychecks. This is in addition to our manual process for adding extra time if there ever is a reason this additional time is not sufficient."

The company said it would "respond as appropriate with the court once we have been served with the complaint."

Counsel for the employees was not immediately available for comment.

The employees are represented by Don J. Foty and David W. Hodges of Hodges & Foty LLP and Matthew S. Parmet of Parmet PC.

Counsel information for Walmart was not available.

The case is Haro et al v. Walmart Inc., case number 1:21-cv-00239, in U.S. District Court for the Eastern District of California.

--Editing by Vincent Sherry. 

Update: This story has been updated with comment from Walmart.

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