Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 87 The decision was appealed to the Ninth Circuit, which certified to the California Supreme Court the question whether “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 [is] compensable as ‘hours worked’”?425 The California Supreme Court, in Frlekin, unanimously answered in the affirmative. Ultimately, Frlekin addressed only the issue of employee control, explaining that an employee need not be working to be subject to the control of an employer and thus entitled to pay.426 Frlekin disagreed with Apple’s argument that an activity must be “required” or “unavoidable” to be compensable and, in any event, found that employees have little choice in bringing their cell phones to work, citing Apple’s own words regarding the indispensability of an iPhone.427 Frlekin also addressed employers’ use of Integrity Staffing in support of their argument that time spent undergoing security checks is non-compensable, stating that the United States Supreme Court decision in Integrity Staffing is neither persuasive or dispositive in that California provides employees with greater protection than does federal law.428 Fortunately for employers, in 2021, the Ninth Circuit recognized some limits to the compensability of security check time. In Cazares v. Host Int’l, Inc., the plaintiff worked for a vendor within Los Angeles International Airport.429 The plaintiff sought compensation for time spent passing through airport security checks en route to his workstation inside the airport. The district court dismissed the claim, and the Ninth Circuit affirmed. Citing Frelkin, the Ninth Circuit emphasized that the plaintiff’s complaint does not allege any facts showing that his employer exercised any level of control over employees during the security checks, which were indisputedly required by federal law and administered by a federal body (TSA). Therefore, employers can cite Cazares to argue that a security check is not compensable when the employer has no control over it. E. California’s Application of the De Minimis Doctrine California employers once could utilize the de minimis doctrine to defeat wage claims brought under the Labor Code.430 Under this doctrine, long applied to claims brought under the FLSA, short and sporadic amounts of time that an employee spends working off the clock are not compensable.431 In Lindow v. United States, the Ninth Circuit explained that “in determining whether otherwise compensable time is de minimis [under the FLSA], we 425 Frlekin v. Apple, 8 Cal. 5th 1038, 1042 (2020). 426 Id. at 1046. 427 Id. at 1055 (“Apple has publicly agreed with the high court’s description of cell phones, joining an amici curiae brief filed in Carpenter that characterized smartphones as ‘practical necessities of modern life,’ ‘fundamental tools for participating in many forms of modern-day activity,’ and ‘not just another technological convenience.’”) (citations omitted). 428 Id. at 1050 n.4. 429 Cazares v. Host Int’l, Inc., 2021 WL 3667227, at *1 (9th Cir. Aug. 18, 2021) 430 See, e.g., Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984) (approximately 7-8 minutes spent each day, before the shift started, reading log book and exchanging information, was de minimis because it was irregular and difficult to monitor). 431 Id.
RkJQdWJsaXNoZXIy OTkwMTQ4