As 2021 draws to a close, many employers are looking ahead to 2022 and hoping to reduce legal risk in the new year. Yet, pay practices put in place for nonexempt employees during the pandemic combined with the Pennsylvania Supreme Court's decision in July in Heimbach v. Amazon.com have created a perfect storm of wage-and-hour risk for Pennsylvania employers.

Prudent employers are examining both Heimbach and employee pay practices to assess their wage-and-hour risk via wage-and-hour audits. These audits look at employer pay practices, worker classifications, and remote work policies, among other areas, to identify potential noncompliance, make any required modifications and potentially avoid costly litigation.

• Heimbach Expansively Interprets the Pennsylvania Minimum Wage Act

In Heimbach, the Pennsylvania Supreme Court held that time spent by nonexempt employees on an employer's premises waiting to undergo, and undergoing, mandatory security screening, was compensable under the Pennsylvania Minimum Wage Act (PMWA). The U.S. Supreme Court had found the exact same time not compensable under the federal Fair Labor Standards Act (FLSA) in 2014 in Integrity Staffing v. Busk. The Heimbach court also held that the FLSA's de minimis doctrine, which excludes from compensable time "insubstantial and insignificant periods," does not apply to bar claims for negligible or insignificant amounts of time worked under the PMWA.