Labor & Employment Law Daily Wrap Up, WAGE-HOUR—WORKING TIME—D. Nev.: Pre-shift COVID-19 screening claims not barred by Nevada law’s incorporation of PPA, (Aug 26, 2026)

By Ronald Miller, J.D.

Three weeks after the Nevada Supreme Court’s ruling, the Nevada Legislature passed S.B. 8, amending Nevada’s wage-hour laws to incorporate the Portal-to-Portal Act.

Amazon was not entitled to judgment on the pleadings against an employee’s claims that the employer failed to pay him for time spent undergoing pre-shift protective screenings during the COVID-19 pandemic, ruled a federal district court in Nevada. After the Nevada Supreme Court held that Nevada did not incorporate the Portal-to-Portal Act into its wage-hour laws, the Nevada Legislature passed Senate Bill 8 (S.B. 8), amending Nevada’s wage-hour laws to incorporate the Portal-to-Portal Act’s exemptions to compensable work. However, S.B. 8’s incorporation of the PPA did not foreclose relief to the employee. The court found that S.B. 8 was not a mere clarification, but instead a substantive change to the law which could not be applied retroactively. Thus, it determined that the employee sufficiently pleaded factual allegations to state a facially plausible claim that undergoing COVID-19 screenings was compensable under Nevada’s wage-hour statutes (Malloy v. Amazon.com Services, LLC, No. 2:22-cv-00286-ART-MDC (D. Nev. Aug. 19, 2026)).

Pre-shift examinations. The employee worked for Amazon as a “fulfillment center associate” from approximately August 2020 to April 2021. In accordance with general emergency orders from Nevada’s Governor and Nevada’s Occupational Safety & Health Administration, “Amazon implemented a company-wide policy requiring each of its hourly, nonexempt employees to undergo a physical and medical examination to check for symptoms of the Coronavirus each shift.”

The examination was undertaken on Amazon’s premises prior to the start of the employees’ shifts and prior to clocking-in and was a requirement to work each shift. The examination took “approximately 10 minutes to 15 minutes on average.” Amazon did not pay the employees for this time.

Class action. The employee alleged that “Amazon required Plaintiff and Class Members to undergo this screening for the purposes of overall safety in the Amazon facilities and to prevent the Plaintiff and Class Members from inadvertently and unintentionally infecting the Amazon facilities or Amazon products. The employee filed this purported class action alleging that Nevada law entitles him and the purported class to be paid for time they allegedly spent undergoing pre-shift protective screenings for COVID-19.

The employee asserted claims for: (1) failure to compensate for all hours worked in violation of NRS 608.016; (2) failure to pay minimum wage in violation of the Nevada Constitution; (3) failure to pay overtime in violation of NRS 608.018; and (4) failure to timely pay all wages due and owing in violation of NRS 608.020-.050.

Certified question. Amazon previously moved to dismiss, arguing that COVID-19 testing is not compensable “work” under the Portal-to-Portal Act (PPA). The court denied the motion to dismiss, holding that Nevada law had not incorporated the PPA, and therefore, the COVID-19 screenings constituted work that required compensation. Amazon then moved to certify for appeal the denial of the motion or, in the alternative, to certify three questions of law to the Nevada Supreme Court. The Court granted the motion in part, finding the underlying question partially dispositive of the case and not previously answered by the appellate courts in this state: “Does Nevada law incorporate the PPA?”

The Nevada Supreme Court resolved the certified question by holding that the plain language and legislative history of Nevada’s wage-hour laws did not evince legislative intent to mirror exceptions to compensable work in the FLSA, as amended by the PPA.

State legislation. Three weeks after the Nevada Supreme Court’s ruling, the Nevada Legislature passed S.B. 8, amending Nevada’s wage-hour laws to incorporate the PPA. The Nevada Legislature expressly provided that S.B. 8 applies to all pending actions.

Amazon subsequently filed a motion for judgment on the pleadings, arguing that (1) S.B. 8 clarifies existing law, and is constitutional; (2) the employee’s claims fail under the Portal-to-Portal Act; and (3) the employee’s Minimum Wage Amendment (MWA) claim fails because he was paid minimum wage.

Constitutionality of S.B. 8. Amazon first argued that S.B. 8 merely clarified existing law and therefore had no retroactive effect that might be called into constitutional question. The employee responded that S.B. 8 is unconstitutional as applied to him as it violates (1) procedural due process, (2) substantive due process, (3) separation of powers, and (4) is an unconstitutional taking.

Retroactivity. The question of whether a change in state law applies retroactively is governed by state law. It is generally presumed that newly enacted statutes apply prospectively unless the Legislature clearly indicates that they should apply retroactively or the Legislature’s intent cannot otherwise be met. In this instance, the legislation is clearly retroactive, since it specifically provides that “[t]he amendatory provisions of [] of this act apply to any action or proceeding that is pending as of the effective date of this act or filed on or after the effective date of this act.”

Here, S.B. 8’s inclusion of a sunset provision, which provides that S.B. 8 automatically expires on October 13, 2029, seems to indicate that S.B. 8 is not a mere clarification, but instead a substantive change to the law. Further, the legislative history also confirms that the amendments are substantive, not clarifying. The Legislative Counsel’s Digest states that Section 1 of S.B. 8 “adds to state law certain additional exclusions and exceptions relating to compensable activities and working time from the federal Portal-to-Portal Act and federal Fair Labor Standards Act.”

Additionally, cases that examined Nevada’s wage-hour statutes prior to the enactment of S.B. 8, found that Nevada’s wage-hour statutes did not incorporate the PPA. Therefore, the court concluded that S.B. 8 is not simply a clarification of existing law but is rather a new limitation on whether employees in Nevada can be paid for preliminary and post-liminary work under Nevada’s wage-hour statutes.

Procedural due process. The employee argued that the retroactive application of S.B. 8 would strip him of his vested property rights without due process, in violation of both federal and Nevada due process protections. To state a claim for a procedural due process violation, the complaint must allege “two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.”

The employee framed the property rights at issue as (1) an individual’s right to compensation and (2) the right to pursue redress for violations of that right to compensation. However, the court pointed out that the Ninth Circuit has held that “a party’s property right in any cause of action does not vest until a final unreviewable judgment is obtained,” and no authority supports that a cause of action vests earlier under Nevada law. Thus, no protected property interest existed to support the employee’s procedural due process claim.

Substantive due process. Next, the employee argued that the Nevada Legislature failed to articulate a rational basis to apply S.B. 8 to conduct that ended five years ago, and therefore, S.B. 8 violates substantive due process. Because the employee did not allege that S.B. 8 implicated a “fundamental right” or utilized a suspect classification, and he concedes that rational basis was the correct standard to apply. Under that standard, the provision need only “meet the (unexacting) standard of rationally advancing some legitimate governmental purpose.”

Amazon contends that the purpose of S.B. 8 was to provide a stable regulatory and legal environment for Nevada businesses. These are clearly legitimate purposes that are not arbitrary and irrational, even when a statute is applied retroactively. Accordingly, the court found that S.B. 8 was based on a rational government interest and did not violate substantive due process.

Takings Clause. The employee also argued that the retroactive application of S.B. 8 resulted in an unconstitutional taking of his property right, in violation of the U.S Constitution and Nevada Constitution. Amazon responded that the Takings Clause has a narrower meaning than the Due Process Clause, and, therefore, the employee’s unconstitutional takings argument failed for the same reasons as his due process arguments.

To determine whether a constitutional “taking” has occurred, the court first must determine whether the subject matter is “property” within the meaning of the Fifth Amendment and, second, whether there has been a taking of that property, for which compensation is due.

The employee’s purported property interest in payment for time spent undergoing COVID-19 screenings is not a vested property right. The MWA does not create any expectation in payment for the COVID-19 screenings, thus making the employee’s purported property interest merely “contingent and uncertain.” Accordingly, his property interest has not vested, and the government’s removal of the interest does not constitute a constitutional taking.

Separation of powers. The employee last argued that S.B. 8 violates the separation of powers doctrines under both the U.S. Constitution and the Nevada Constitution because the Nevada Legislature was illegally injecting itself in the instant litigation to determine the outcome. Amazon responded that (1) separation powers principles in the U.S. Constitution do not apply against the states, and (2) Nevada courts have approved retroactive legislation that applies to pending litigation.

The Supreme Court has held that “the separation-of-powers principles that the Constitution imposes upon the Federal Government do not apply against the States.” Further, the employee’s Nevada Constitution separation of powers argument fared no better, as Nevada courts have explicitly approved retroactive legislation when “legislative intent to do so is clear.”

Portal-to-Portal Act. The employee also alleged that COVID-19 screenings were integral and indispensable to his principal work activities at Amazon. Amazon countered that undergoing COVID-19 screenings was not integral and indispensable to the employee’s principal work-related activities.

The court had to determine whether time spent in COVID-19 screenings was compensable under the FLSA, and therefore, whether the employee had stated a claim for (1) failure to compensate for all hours worked in violation of 608.016; (2) failure to pay overtime in violation of 608.018; and (3) failure to pay all wages due and owing in violation of 608.020–050.

As a threshold matter, the court previously decided that the employee had plausibly alleged that the COVID-19 screenings constituted work, under the FLSA’s definition. Accordingly, the court found that, under the law of the case doctrine, the COVID-19 screenings constituted work for the purposes of this motion. Thus, the employee sufficiently pled that going through the COVID-19 screenings prior to his shift was integral and indispensable to his primary job duty of serving and assisting Amazon customers, such that he stated a facially plausible claim that undergoing COVID-19 screenings is compensable under Nevada’s wage-hour statutes. Therefore, the court permitted the employee’s state law claims to proceed.

Minimum wage claim. Amazon argued that the employee’s MWA claim failed because he was paid minimum wage when his pay is averaged across the total time worked. For his part, the employee contended that the MWA guarantees a minimum wage for each hour worked, rather than as an average over the workweek.

Amazon’s arguments that S.B. 8’s changes to Nevada’s wage-hour statutes changed the definition of work under the MWA are unavailing, as the Nevada Supreme Court has clearly stated that “the Legislature cannot by later enacted statute abridge a right the constitution guarantees.”

In A Cab, LLC v. Murray, 501 P.3d 961 (2021), the Nevada Supreme Court considered how to calculate the unpaid wages of taxicab drivers who were “afforded minimum wage protections under the MWA,” even though they were “exempt from statutory minimum wage protections.” A Cab strongly indicates that the actual hours worked (not the average wage over a workweek or pay period) is the relevant metric for MWA claims.

Amazon also argued that the Ninth Circuit’s decision in Porteous v. Capital One Services, 809 F. App’x 354 (9th Cir. 2020), is no longer good law after S.B. 8. In Porteous, the Ninth Circuit found that “the MWA is best interpreted to guarantee a minimum wage for each individual hour worked, rather than as an average over a workweek.”

Accordingly, the Court finds that application of A Cab and Porteous and its previous conclusion that the employee stated a claim for unpaid work under the MWA necessitated a finding that the employee had stated a claim under the MWA.

Therefore, Amazon’s motion for judgment on the pleadings was denied.

The case is No. 2:22-cv-00286-ART-MDC.

Judge: Traum, A.

Attorneys: Don J. Foty (Law Offices of Don J. Foty) for Dwight Malloy. Andrew G.I. Kilberg (Gibson, Dunn & Crutcher) for Amazon.com Services, LLC.

Companies: Amazon.com Services, LLC

Cases: WageHour WorkingTime ClassActions StateLegislation StateLawClaims Covid19 NevadaNews