By Daniela Porat

Law360 (March 18, 2021, 8:10 PM EDT ) Amazon workers can tack on a new claim demanding pay for pre-shift COVID-19 screenings to a proposed class action, a New Jersey federal judge ruled after determining that the new claim is valid and merits discovery.

U.S Magistrate Judge Tonianne J. Bongiovanni ruled Wednesday that a proposed class action of Amazon.com warehouse workers can file an amended complaint claiming the tech giant should pay workers for the time they spend getting their temperatures taken and answering a COVID-19 questionnaire prior to their shifts. COVID-19 is the respiratory ailment caused by the coronavirus.

Judge Bongiovanni shot down Amazon's argument that this new claim is pointless because time spent undergoing screenings is not for Amazon's benefit and therefore it's not compensable work time.

The workers are "entitled to discovery on this issue, and the proposed amendment is not futile," Judge Bongiovanni said.

This ruling stems from a lawsuit that named plaintiff Diane Vaccaro originally filed in New Jersey state court in May 2015 against Amazon, alleging the company stiffed workers of pay for meal breaks and time spent going through obligatory security screenings in violation of New Jersey wage and hour law.

In June, U.S. Chief District Judge Freda L. Wolfson dismissed the workers' meal time claim, leaving the security screenings as sole claim until Wednesday.

Judge Bongiovanni said the question as to whether the COVID-19 screening claim warrants inclusion in the suit turns on whether the screenings benefit the employee or the employer.

It is already "clear" that the requisite screenings are controlled by Amazon, which satisfies the first part of a two-pronged test to determine whether such activities count as work time, according to Judge Bongiovanni.

The workers argue that similar to the security screenings they undergo following their shifts, the COVID-19 screenings represent time for which they should be paid because they must be at work to complete them.

Moreover, the screenings are for the benefit of the company, not the worker, they argued in a brief in support of adding the new claim.

Amazon implemented this policy "to ensure continued operation of its fulfillment centers by limiting the risk of a highly infectious virus from spreading to its workforce who work in close contact with each other," according to a brief filed by the workers. 

Amazon "simply cannot afford hundreds of employees at each fulfillment center having to miss two weeks of work to quarantine," the brief said.

Amazon disagreed, arguing that the primary beneficiaries transcend the company.

"By attempting to prevent community transmission of a highly contagious and potentially deadly disease, COVID screenings predominantly protect the health of employees, their families and the broader public," the company said in a brief.

In the Wednesday ruling, Judge Bongiovanni points to an important concession made by Amazon regarding the second part of the two-part test.

Amazon admits to the fact that "whether an activity is primarily for the employer's benefit or the employee's benefit" is case-dependent," she said.

As such, Vaccaro and her colleagues are entitled to bring the claim, the judge said.

Attorneys for the workers declined to comment.

Attorneys for Amazon did not immediately respond to requests for comment Thursday.

The plaintiffs are represented by Matthew D. Miller and Justin L. Swidler of Swartz Swidler LLC.

Amazon is represented by Richard G. Rosenblatt and Joseph A. Nuccio of Morgan Lewis & Bockius LLP.

The case is Diane Vaccaro v. Amazon.com.DEDC LLC, case number 3:18-cv-11852, in U.S. District Court for the District of New Jersey.

--Editing by Neil Cohen.

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