Grocery chain Albertson’s has been sued in federal court in Massachusetts after it allegedly failed to include $2 per hour in “hazard pay” related to the Corona virus in its overtime calculations for its employees.  According to the lawsuit, in 2020, when the virus hit the U.S., grocery store workers and grocery warehouse workers were two of the categories of workers deemed essential workers by the U.S. government. The plaintiff alleges that in order to keep their stores open and encourage their workers to keep working, a number of stores and warehouses, including Albertsons, LLC, Shaw’s and the Methuen and Wells Distribution Centers introduced hazard premiums during this time.  According to the suit, Albertsons instituted an “Appreciation Pay”—an additional two dollars ($2.00) per hour on March 20, 2020. The suit further alleges that the Plaintiff and those similarly situated have regularly worked in excess of 40 hours a week and have been paid overtime for those hours but at a rate that does not include the two- dollar ($2.00) per hour hazard pay.  The suit claims that plaintiff received a regular rate of $23.60 and an overtime rate of $35.40, which is one-and-one-half the stated regular rate. According to the suit, Plaintiffs also earned the two-dollar an hour ($2.00) Appreciation Pay on this pay stub, but this overtime rate does not account for the $2.00 per hour hazard premium instituted by Albertsons.

According to the Department of Labor, under the FLSA, hazard payments must be included when calculating a worker’s regular rate of pay.  See also Rodriguez v. City of Albuquerque, 687 F. Supp. 2d 1270 – Dist. Court, D. New Mexico 2009 (“Hazard pay must be included in calculating the “regular rate” of pay under the FLSA.”); see also 29 C.F.R. § 778.207(b) (stating that non-overtime premiums for specific hours worked, such as nightshift differentials and hazard pay, must be included in the regular rate). So, if a worker normally receives $16 per hour (meaning their normal overtime rate would be $24), and receives an additional $2 per hour in hazard pay, this would mean that their overtime pay would now be $27 per hour.  

If you have received “differential” or hazard pay, but it was not included when calculating your overtime pay, speak with an experienced overtime attorney as soon as possible to learn of your legal rights.  Josh Borsellino is a Texas attorney that represents workers on claims for unpaid overtime.  For a free, no-obligation, confidential consultation, call Josh Borsellino at 817.908.9861 or email him through this link today.