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

204 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com More generally, the Supreme Court emphasized generally the differences between federal law and more employee-friendly California law, proclaiming that California courts should not incorporate a federal standard on compensable time absent convincing evidence that California authorities intended to incorporate the federal standard . 84 7.3.6 Security procedures Under the FLSA, time that employees spend undergoing post-shift security screenings is not compensable. The Supreme Court so held in 2014, reasoning that this screening activity for warehouse employees was not “integral and indispensable to the principal activities that an employee is employed to perform,” and thus was exempted from FLSA requirements by the Portal to Portal Act of 194 7. 85 California, however, has no analogous exemption, and makes time compensable wherever an employee is under the employer’s control. Federal district courts in California have routinely certified classes of retail workers who sought pay for the time they spent cooperating in routine bag checks upon departing the stor e. 86 In 2020, the California Supreme Court definitively determined that the time that employees spend undergoing post-shift security screenings was compensable as “hours worked,” even where the process was voluntary . 87 7.4 Computing Wages Owed 7.4.1 Employer duty to record hours California employers must record and maintain (in addition to name, address, and other personal information) voluminous data as to each employee. The items that employers must record include gross wages earned, net wages earned, total hours worked, the number of any piece-rate units earned, any applicable piece-rate, inclusive dates of pay periods, all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each rate, the time each work period and meal period began and ended, and all deductions made . 88 California employers must not prohibit employees from maintaining their own personal record of the hours they have worked or the piece-rate units they have earned . 89 7.4.2 Workday and workweek calculation For purposes of computing daily and weekly overtime pay, employers must count the hours worked within each “workday” and “workweek.” Employers often designate the workweek as beginning at midnight on Sunday and the workday to begin at midnight each day, though the workday and workweek can begin at any time the employer designates (or at different times for different groups of employees). Time worked within the designated workday counts toward daily overtime, and time worked within the designated workweek counts toward weekly overtime. California courts have found “artificial” workweek designations unlawful if those designations aim to avoid overtime obligations. One Court of Appeal decision held that employees who worked 14-day shifts from Tuesday to Tuesday on boats could recover seventh day overtime compensation on both the seventh and 14th days of each consecutive 14-day work period, even though the employer’s designated workweek began on Monday at 12:01 a.m. and ended on Sunday at midnight, as the Court of Appeal found that the employer had artificially designated its workweek to avoid overtime obligation s. 90 7.4.3 The de minimis doctrine—Not Federal courts applying the FLSA have recognized that some work time off the clock is too short, sporadic, or difficult to record to be compensable . 91 T his time is considered de minimis (too trivial to care about). De minimis is a doctrine rather than an affirmative defense that a defendant must plead . 92 Exemplifying the doctrine in action are