In a recent decision, the Illinois Supreme Court has exposed employers to potentially major wage-and-hour law liability.
In Johnson v. Amazon.com Services, LLC, 2026 IL 132016, the Illinois Supreme Court ruled that the Illinois Minimum Wage Law (IMWL), which governs minimum wage and overtime pay, does not incorporate the Portal-to-Portal Act amendment to the Fair Labor Standards Act (FLSA), the federal minimum wage and overtime pay law. The Portal-to-Portal Act limits when “preliminary” and “postliminary” activities undertaken before or after shift time are compensable. Under well-settled federal law, such activities are not compensable if they are not “integral and indispensable” to an employee’s principal duties. But the Illinois Supreme Court determined that the IMWL never incorporated the Portal-to-Portal Act and hence its “integral and indispensable” requirements. Thus, Illinois employers must count pre- and post-shift time as work time as long as the employee is simply “required” to be on duty or on the employer’s premises.
This opens up Illinois employers to significant potential liability for pre- and post-shift activities that would not have to be counted as compensable time under federal law. Illinois employers will need to review their timekeeping and pay practices to determine if they need to be changed to comply with these Illinois-specific requirements.
The Ruling
The ruling arises from a class action lawsuit on behalf of 20,000 Amazon warehouse employees in Illinois who sought compensation for time spent undergoing mandatory pre-shift COVID-19 medical screenings. It was readily determined that the screening time was not compensable under the Portal-to-Portal Act, which long ago amended the FLSA. Developed case law applying the Portal-to-Portal Act has since found that a range of activities, although ancillary to performing the job, were not compensable. These activities were deemed non-compensable because they were not “integral and indispensable” to the employee's principal duties. These activities include time spent waiting to punch in at the time clock, changing clothes, undergoing security screenings, or donning and doffing certain work-related protective gear or equipment.
The question before the Illinois Supreme Court was whether Illinois law incorporated the Portal-to-Portal Act. The answer was no. The Court acknowledged that Illinois courts may look to the FLSA for interpretive guidance where federal law is "parallel" to the IMWL. However, the Illinois Supreme Court’s reading of the IMWL, its legislative history, and the rules of the Illinois Department of Labor interpreting the IMWL led it to conclude that the IMWL simply does not incorporate the Portal-to-Portal Act and its express exceptions for preliminary or postliminary activities. Therefore, an employer must compensate “all the time an employee is required to be on duty, or on the employer’s premises, or at other prescribed places of work, and any additional time the employee is required or permitted to work for the employer.” Any fix, the Illinois Supreme Court determined, was in the hands of the Illinois legislature.
Where Does This Leave Illinois Employers?
This ruling leaves Illinois employers exposed to liability for a wide range of pre- and post-shift activities that they may not currently compensate for. These include:
- Required on-site waiting time, such as waiting in line to punch in or requiring employees to be present 10 minutes before punching in
- Security checks when entering the premises
- Time spent changing clothes before and after work
- Installing or updating required software
- Retrieving and returning required tools and equipment
- Other employer-mandated activity performed off the clock that is not compensated because it is not “integral and indispensable” to the principal job activity
Employers with Illinois operations should review any such nonpaid activities and evaluate whether they should henceforth be paying them or whether they should be discontinuing them. To the extent they keep them, they should ensure that timekeeping practices capture all such activities.
Failure to take such precautions could result in potentially enormous exposure due to the realities of class action litigation. Take the lawsuit against Amazon. The lawsuit alleged that the screenings took 10-15 minutes before the start time. If done daily, that would be 50-75 minutes per employee in a week. With 20,000 employees, one can see how liability could add up. It gets worse: The IMWL provides for tripling of that amount plus 5% interest per month on the underpayment, plus recovery of attorneys’ fees.
Most Illinois employers are not nearly as large as Amazon. But let’s assume an employer has 50 hourly employees who earn an average of $22-$23 per hour and requires them to go through a security screening that takes about 12 minutes per day before they clock in. That would add up to 50 minutes per week of owed compensable time. Assuming the employees regularly work 40 hours per week, all that time would be owed at their overtime rate (1.5 times their regular hourly rate). Now, multiply that by 52 weeks per employee for each year for up to the past three years, and then apply the statutory tripling of that amount, plus 5% interest per month on the underpayment. One can see how that total can exceed over $1 million of exposure, not including attorneys’ fees, for that 12 minutes’ screening time.
Ironically, the Portal-to-Portal Act was passed by Congress because of the flood of lawsuits under the FLSA after the U.S. Supreme Court had expansively interpreted what was considered compensable time under the FLSA. With the Illinois Supreme Court’s recent interpretation of the IMWL, Illinois employers face undergoing that same experience.
Of interest, the Nevada Supreme Court recently issued a decision similarly finding that Nevada’s wage and hour laws did not incorporate the Portal-to-Portal Act. In reaction, the Nevada state legislature held a special session to pass a measure confirming that employers do not have to pay employees for certain activities performed before or after a shift. The governor then signed the bill, and it took immediate effect.
No such direct action has yet taken place in the Illinois legislature.
Contact Your Much Attorney
Contact your Much attorney to discuss how this ruling may affect your business and what steps you can take to review your timekeeping and pay practices to ensure compliance with the IMWL and avoid potentially significant liability.