Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 201 controlled or required by the employer and that is pursued necessarily and primarily for the employer’s benefit, while California-regulated work, by contrast, is any time spent under the control of the employe r. 56 In 2020 the California Supreme Court went a further step in Frlekin v. Apple, Inc . , 57 a referral from the Ninth Circuit that the Supreme Court accepted to decide this question: “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order No. 7? ” 58 T he Supreme Court, in a unanimous decision, answered this question in the affirmative. At issue in Frlekin was whether a retail store had to pay employees for the time they spent undergoing bag checks and other security procedures as they left the store. Frlekin began with California’s peculiar test for “hours worked”: whether the employee’s time was subject to the control of the employer. Frlekin noted that, under this test, time is compensable regardless of whether it is spent “working,” and noted that California in this respect deviates from more limited federal law. Frlekin rejected the ground on which the employer won summary judgment from the trial court, which had reasoned that searches of items were not compensable if the employees voluntarily brought the items to the workplace for their own personal convenience. Frlekin distinguished authority holding that employers are not liable for the time that employees voluntarily spend commuting on an employer-provided shuttle, because the shuttle rides primarily benefit employees, while security checks—reflecting the employer’s interest in deterring theft—primarily benefit the employer. Accordingly, “the potential antecedent ‘choice’ by some employees not to bring any searchable items to work does not invalidate the compensation claims of the bag-toting … employees who are required to remain on the employer’s premises while awaiting an exit search of those items. ” 59 Frelkin emphasized that “with regard to cases involving onsite employer-controlled activities, the mandatory nature of an activity is not the only factor to consider”—indeed, courts should consider additional factors, such as “the location of the activity, the degree of the employer’s control, whether the activity primarily benefits the employee or employer, and whether the activity is enforced through disciplinary measures. ” 60 Following the California Supreme Court’s decision, the Ninth Circuit reversed the district court’s summary judgment for the employer, and ordered the district court to grant summary judgment for the plaintiffs on the issue of compensabilit y. 61 7.3.3 Reporting time pay and split shift pay Reporting time. Nonexempt employees sometimes report for work, only to find that the expected work is not available. When that happens, California employers must pay for at least one-half the scheduled work (with the pay to be no less than two hours nor more than four hours ). 62 Nonexempt employees also sometimes report for work a second time within the same workday to find less than two hours of work to perform on the second reporting. When that happens, the employer must pay two hours “at the employees’ regular rate of pay, which shall not be less than the minimum wage. ” 63 The Court of Appeal has rejected a plaintiff’s claim that, as to a 45-second termination meeting he was summoned to attend, he should have received four hours of pay instead of the two hours of pay that he did receive. The Court of Appeal reasoned that on the day in question the plaintiff was scheduled for a meeting of unspecified length and so was not entitled to anything beyond the two-hour minimum . 64 The Court of Appeal has also clarified that because reporting-time pay is due only when the employee has work for less than one-half the scheduled shift, an employer can schedule short meetings and pay for only the length of