This article has been saved to your Favorites!

Walmart Workers Claim COVID Screening Time Went Unpaid

By Hannah Albarazi · March 23, 2021, 2:28 PM EDT

Walmart workers hit the retail giant with a $5 million proposed class action Monday, alleging Walmart required employees to arrive at their shifts early to undergo COVID-19 screenings but flouted the law by failing to fully compensate them for their time.

Tristan Smith and Kathy Arrison, current and former Walmart retail associates, respectively, filed the putative class action in Arizona federal court, claiming the Arkansas-based retail behemoth required them to arrive at their shifts 10 to 15 minutes early to undergo mandatory COVID-19 screening but didn't compensate them for all that time.

As a result of Walmart's failure to pay, the company enjoyed unjust enrichment at the expense of its workers, Smith and Arrison allege.

The workers' attorney, Todd C. Werts of Lear Werts LLP, told Law360 on Monday that Walmart workers in Arizona "did everything asked of them to make sure that the Walmart stores could stay open and their customers would stay safe" during the pandemic.

"Unfortunately, these workers were not paid for this additional time that Walmart required of them," Werts said. "This lawsuit seeks to remedy that."

Werts said Walmart has enjoyed significant profits during the pandemic and that he's "hopeful that we will find a solution that fairly compensates their employees for their efforts in contributing to that success."

Walmart, however, maintains that it has compensated its hourly retail associates for pre-shift time spent undergoing COVID-19 screenings.

A Walmart spokesperson told Law360 on Monday that its workers have received compensation for the "extra time" they spent being screened for symptoms of the virus.

"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. We will respond as appropriate with the court once we have been served with the complaint," the Walmart spokesperson said.

But Smith and Arrison say that starting in April, Walmart required every worker — at both its retail stores and its fulfillment centers — to arrive early to their assigned shift to undergo a mandatory physical and medical examination to screen for symptoms of COVID-19.

The medical examinations and screenings ensured that the virus did not disrupt Walmart's business operations and ensured a safe environment for its customers, Smith and Arrison say.

The screenings involved standing in line with co-workers to get temperature readings and answering questions about health conditions, recent travel and potential exposures to anyone with the virus, Smith and Arrison say. After passing the screening, workers were given masks and gloves. Only then were they allowed to clock in for the day, they allege.

Smith and Arrison say workers who failed the screening repeated it. If they failed to pass that secondary screening, they were not allowed to clock in.

Smith and Arrison estimate the time spent waiting in line and taking the screening took about 10-15 minutes each day.

"Walmart did not pay its employees for the time spent undergoing these required COVID-19 screenings," they alleged in the complaint.

Since the COVID-19 examinations were undertaken on Walmart's premises and were primarily for the benefit of the company, Walmart should have paid its workers for compensable time worked, Smith and Arrison allege.

During the time spent waiting for and undertaking the screenings, the workers say, they were subject to the control of Walmart. Walmart restrained them and prevented them from using that time for their own purposes, they claim.

Walmart knew or should have known that its workers should be paid for that time, Smith and Arrison claim, pointing to Walmart's November decision to add five minutes to each workers' daily recorded time in order to partially compensate them for the COVID-19 screenings.

"Walmart has demonstrated its knowledge that the time spent in the COVID-19 screenings should be compensated," Smith and Arrison said.

But the five-minute addition is insufficient compensation for the actual time workers spent in the screenings, they contend, adding that Walmart has also made no effort to reimburse them for the pre-shift screenings that occurred prior to November.

Smith and Arrison claim Walmart violated Arizona's labor laws and seek damages in an amount that is treble the amount of their unpaid wages. They say Walmart also "willfully" flouted Arizona's record-keeping requirements by failing to keep time cards for each hourly worker and is thus liable for upwards of $250 in civil penalties for the first violation against each worker and upwards of $1,000 for each subsequent violation.

While Walmart benefited from unpaid labor, the workers say it impoverished them.

This "unjust and inequitable" enrichment to Walmart must be reversed, the workers demand, calling on the court to order Walmart to disgorge its "ill-gained benefits."

But Walmart workers aren't the only ones seeking compensation for virus screenings.

In March, a New Jersey federal judge ruled that Amazon warehouse workers seeking compensation for time spent in obligatory security screenings could amend their complaint to include a claim for compensation of pre-shift time spent undergoing COVID-19 screenings.

That same month, workers sued a California tennis company seeking compensation for time they spent undergoing mandatory temperature checks as a precaution during the pandemic.

The workers are represented by Todd C. Werts, Bradford B. Lear and Anthony J. Meyer of Lear Werts LLP.

Counsel information for Walmart was not immediately available.

The case is Kathy Arrison et al. v. Walmart Inc. et al., case number 2:21-cv-00481, in the U.S. District Court for the District of Arizona.

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.