Vaccaro v. Amazon.com.dedc, LLC

DIANE VACCARO, on behalf of herself and those similarly situated, Plaintiff, v. AMAZON.COM.DEDC, LLC, Defendant.

Civil Action No. 18-11852 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 17, 2021

MEMORANDUM OPINION

BONGIOVANNI, United States Magistrate Judge

Currently pending before the Court is named plaintiff Diane Vaccaro's ("Plaintiff's") motion to amend the pleadings. (Docket Entry No. 47). Defendant Amazon.com.dedc, LLC¹ ("Defendant") has opposed Plaintiff's motion on futility grounds. The Court has fully reviewed the arguments made in support of and in opposition to Plaintiff's motion. The Court considers Plaintiff's motion to amend without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, Plaintiff's motion to amend is GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

This is a putative class action brought by current and former employees against Defendant seeking compensation under the New Jersey Wage and Hour Law ("NJWHL"), N.J.S.A. 34:11-56a et seq., for time spent undergoing mandatory post-shift security screenings at Amazon facilities in New Jersey and for time spent on meal breaks. On May 11, 2015, Plaintiff filed the instant action in the Superior Court of New Jersey, Mercer County, and on July 19, 2018, Defendant removed the case to this Court. (Docket Entry No. 1).

On June 29, 2020, the District Court granted in part and denied in part Defendant's motion for judgment on the pleadings. (Docket Entry Nos. 42, 43). The District Court denied Defendant's motion with respect to the post-shift security screenings but dismissed Plaintiff's claim regarding unpaid meal breaks. (Id.)

The Initial Pretrial Conference was held on August 18, 2020, and the parties were directed to proceed with the first phase of a bifurcated discovery process. (Docket Entry No. 46).

Plaintiff now seeks leave to file a Second Amended Complaint ("SAC") to add an additional named plaintiff, Jennifer Chiu, and a claim that Defendant failed to pay Ms. Chiu and putative class members for pre-shift COVID-19 screenings at Defendant's warehouses or "fulfillment centers." (Plaintiff's Brief in Support of Plaintiff's Motion for Leave to File Second Amended Complaint ("Pl. Brief"), Ex. A, Docket Entry No. 47). Defendant opposes the motion, arguing that the amendments are futile because "COVID screenings are not compensable because they are not 'work'" under the NJWHL. (Defendant's Brief in Opposition to Plaintiff's Motion for Leave to File a Second Amended Complaint ("Def. Brief") at 1, Docket Entry No. 50).

II. THE PARTIES' ARGUMENTS

A. Plaintiff's Arguments

The SAC alleges that proposed named plaintiff Chiu was required to "submit to COVID-19 screenings on Defendant's premises prior to clocking in" that included having her temperature taken and answering questions "including but not limited to whether [she has] been in contact with any person infected by COVID-19." (Pl. Brief, Ex. A, ¶¶ 49-50). Chiu and other employees of Defendant who were and are subject to such screenings were/are not compensated for this time at a fulfillment center. (Id., ¶¶ 51-52).

Plaintiff argues that the pre-shift COVID screenings fit the definition of "work" that applies to the NJWHL. (Pl. Brief at 4). The NJWHL requires employers to pay for "[a]ll time the employee is required to be at his or her place of work or on duty." N.J.A.C. 12:56-5.2(a). The District Court interpreted the phrase "place of work" in its decision on Defendant's motion for judgment on the pleadings. Vaccaro v. Amazon.com.dedc, LLC, CV 18-11852 (FLW), 2020 WL 3496973, at *3-6 (D.N.J. June 29, 2020) (Docket Entry No. 42, hereinafter "MJOP Opinion"). Noting the lack of guidance from NJWHL regulations or the New Jersey Supreme Court, the District Court looked to the Fair Labor Standards Act ("FLSA") and its regulations, finding that the phrase "place of work" means "any place where the following two prongs are met: (1) an activity is performed that is controlled or required by the employer; and (2) such activity serves to primarily benefit the employer." (MJOP Opinion at 8) (emphasis in original). NJWHL regulations also provide that "[w]hen employees are not required to remain on the employer's premises and are free to engage in their own pursuits . . . the hours shall not be considered hours worked." N.J.A.C. 12:56-5.6. Plaintiff argues that the adopted definition of "place of work" and the NJWHL regulation's requirement that employees be compensated when they are required to be at the employer's premises make the pre-shift COVID-19 screenings compensable work. (Pl. Brief at 9).

With respect to the second prong of the definition of "place of work," Plaintiff argues that the COVID screenings also primarily benefit Defendant. (Pl. Brief at 9). Analogizing to the post-shift security screenings that the Court found were primarily for Defendant's benefit, Plaintiff asserts that Defendant implemented the screenings to keep the virus from spreading among employees of its fulfillment centers and resulting in high rates of absenteeism due to infection or exposure - or even the closure of those centers. (Id.; Plaintiff's Reply Brief in Further Support ofPlaintiff's Motion for Leave to File a Second Amended Complaint ("Pl. Reply Brief") at 2, Docket Entry No. 51). In fact, Plaintiff states, "Maintaining continued operations for Defendant is its singular motive; otherwise, if safety predominated, Defendant could most effectively keep its workers safe if it closed the facility during the pendency of the pandemic." (Pl. Reply Brief at 2).

Plaintiff analogizes to the Supreme Court's decision in Steiner v. Mitchell, 350 U.S. 247 (1956), where the Court found that battery plant workers had to be paid for post-shift showers at their employer's premises because they were exposed to toxic chemicals including lead. To protect the workers and their families, the workers were required shower, and this was compensable work. See id. at 249-53. Plaintiff argues that if the post-shift showers were compensable where they protected the employees and families from exposure to toxic chemicals and were required by law to be provided, then the pre-shift COVID screenings required by Defendant should be compensable. (Pl. Reply Brief at 4-5).

"At a minimum," Plaintiff argues that the proposed claim should survive at this stage of litigation and discovery should be permitted into who primarily benefits from the COVID-19 screenings. (Pl. Reply Brief at 6).

B. Defendant's Arguments

Defendant argues that the pre-shift COVID-19 screenings are not "work" under the NJWHL because work must primarily benefit the employer; therefore, Plaintiff's proposed amendments to the First Amended Complaint are futile. (Def. Brief at 1). It distinguishes the post-shift security screenings that the MJOP Opinion found "do not 'benefit any person or entity other than Amazon." (Id.). Instead, Defendant argues, the COVID screenings "predominantly" protect, employees, their families, and the general public. (Id. at 2, 6). The health and safety benefits of the screenings "predominate over" the economic benefits Amazon receives frompreventing absenteeism and keeping its facilities open. (Id.at 7). Defendant asserts, however, that "whether time is spent predominately for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case." (Id.) (internal quotations and citations omitted).

On this main point of whether the COVID screenings primarily benefit Defendant, it analogizes to cases where courts found that time employees spent on employer-required alcohol and drug counseling and treatment or sleep apnea testing and treatment was not primarily for the employer's benefit. Although employers do benefit from having workers who are not dependent on alcohol or drugs or suffering from untreated sleep apnea, courts did not find that they were the primary beneficiaries of these activities. (Def. Brief at 8-9, citing Wheat v. J.B. Hunt Transport, Inc., 2016 WL 1397673 (C.D. Cal. 2016); Gibbs v. City of New York, 87 F. Supp. 3d 482 (S.D.N.Y. 2015); Makinen v. City of New York, 53 F. Supp. 3d 676 (S.D.N.Y. 2014)).

In fact, Defendant relies on the fact that New Jersey law first encouraged and now requires daily COVID screenings to support its argument that COVID screenings do not primarily benefit the employer. Defendant cites to the Governor's executive orders since March 16, 2020 encouraging employers to adhere to guidelines from the Centers for Disease Control and Prevention ("CDC"), including recommendations to conduct daily health checks to screen employees for fevers and other symptoms since at lease May 6, 2020. By New Jersey Executive Order No. 192, dated October 28, 2020, New Jersey requires employers to "conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including latest CDC guidance regarding COVID-19 symptoms." (Id. at 10-11). Employers are directed to send employees with symptoms home from work. (Id. at 11-12). Defendant cites statements from these executive orders to show how such screenings protect employees and the public. (Id. at 12).Defendant accordingly cites cases where time spent in legally-required screenings was not considered compensable work. (Id. at 13).

Defendant also argues that wage and hour laws do not and should not "discourage employers from taking this type of proactive measure" and potentially reduce efforts to prevent the spread of COVID-19. (Id. at 10). "[T]o undersigned counsel's knowledge, no court in the country has held that employers must pay extra compensation if they attempt to use workplace COVID screening to slow the spread of this dangerous disease." (Id. at 2).

III. ANALYSIS

A. Standard of Review

Pursuant to Rule 15(a)(2), leave to amend the pleadings is generally granted freely. See Foman v....