Employers must compensate employees for the time they spend waiting for management to inspect personal property before they leave work. That is the California Supreme Court’s unanimous ruling in Frlekin v. Apple Inc., which is based on California’s longstanding definition of “hours worked.”
Although Frlekin arose in the context of security inspections, all California employers should understand the breadth of the term “hours worked” under California law.
The Definition of “Hours Worked”
Employers must pay at least the applicable state minimum wage for all hours worked (absent an applicable exemption). California’s definition of hours worked is contained within the Industrial Welfare Commission Wage Order applicable to the industry or occupation of the employer in question.
Wage Order 7-2001, the retail industry Wage Order at issue in Frlekin, defines “hours worked” as: “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”
In California, therefore, the term “work” is broader than the time spent performing job duties. If the employee is “subject to control,” it does not matter if the employee is “working” or, in some cases, even sleeping.
Security Screenings as Hours Worked
Applying the “hours worked” definition discussed above, the California Supreme Court decided Apple’s security screenings at its retail stores were compensable. The Court noted as evidence of control that Apple’s written policy imposed upon employees numerous tasks, such as finding a manager, opening their personal belongings, and producing their electronic devices; employees were subject to discipline for disregarding the screening policy; and employees were confined to the premises until the tasks were complete.
The Court rejected Apple’s argument that an activity does not count as employer control if it is avoidable or not required. Apple argued employees could avoid screenings, for example, by refraining from bringing personal items to the store. As a practical matter, the Court stated, employees realistically could not be expected not to bring personal bags — or their personal Apple iPhones for that matter — to work.
The Court found unpersuasive Apple’s analogies to cases involving commuting or time outside the workplace. The employer’s interest in controlling its workplace, as well as the degree of control exercised at work, were higher, the Court reasoned, justifying the employer’s compensation obligation. The Court also believed that Apple’s security searches were primarily for Apple’s benefit, tipping the scales in favor of “control.”
Other Examples of Control
The Court in Frlekin relied on several earlier cases to reach its conclusion. Employers should be aware of these and other decisions to avoid liability for “off the clock” work claims.
It is well-known that employers must provide a duty-free meal period, which may be unpaid. However, if an employer restricts employees’ ability to leave the premises, employees are “subject to the employer’s control.” As a result, the Court of Appeal held in Bono Enterprises v. Bradshaw, that the meal period is deemed hours worked.
In Mendiola v. CPS Security Solutions, Inc., security guards were entitled to be compensated for time they were “on call” at a job site’s premises. Although they lived in a trailer, and could watch television, sleep, and engage in other personal activities, they could not leave the worksite without making advance arrangements, and were required to respond in uniform immediately when called.
Employers required farm workers to meet at a central location and board employer-provided buses for the final journey to their work location. The Supreme Court held in Morillion v. Royal Packing Co. that this final part of the commute was under employer control and compensable.
Courts are reluctant to find employer involvement in a commute is sufficient to constitute “hours worked” when the employer program is optional. For example, when the employer permitted workers to take company vehicles home, rather than pick them up at a central dispatch location, the Court of Appeal found the commute in the company vehicle was not compensable time. The employees had argued in Hernandez v. Pacific Bell Telephone Co., that the employer’s restrictions on the use of the company truck, as well as the employer’s equipment inside, amounted to sufficient employer control.
Similarly, in Overton v. Walt Disney Co., the employer allowed employees to take a shuttle bus from a remote parking lot to the work area, but did not require it. Unlike in Morillion, the use of the employer’s shuttle bus was optional.
Finally, employers may impose non-compensable “on-call” or “beeper time” under California law without compensation. But employers must be careful not to exercise too much control during such time, or it could be considered “hours worked.” Courts will consider several factors, including geographic restrictions, frequency of calls, response times, employees’ ability to trade on-call responsibilities, and the feasibility of engaging in personal pursuits, in evaluating whether such time is compensable. In Gomez v. Lincare, for example, the Court of Appeal applied these factors to find the employer’s on-call time to be non-compensable.
That said, Gomez predates Frlekin. The Supreme Court’s focus on the degree to which employers’ restrictions serve the employer’s interest and benefit employees could affect future cases. In particular, uncompensated on-call policies may be vulnerable to new scrutiny. In addition, employers should consider whether they are exercising sufficient control when employees are off duty to transform time into “hours worked.”
Employers also should review a number of internal policies in light of the Frlekin decision, including those addressing bag or security checks, personal use of company vehicles, off-premises conduct, timekeeping, reporting hours worked, and off-the-clock/post-shift work.