Over the last several years, California courts have issued several rulings dealing with “compensable time” — specifically, when an employer is required to pay its employees for “hours worked.”
The latest clarification comes from the California Supreme Court, with a broad reach and clarification of what is deemed to be “compensable time worked.”
The plaintiff in Frlekin v. Apple worked in an Apple retail store. At the conclusion of every work shift, her personal property was searched pursuant to Apple’s bag search policy. The policy was designed to reduce losses based upon employee theft. Before leaving the Apple store after their shifts, employees were required to meet with a manager, who would inspect any purses, handbags or backpacks. Employees were required to clock out prior to submitting their personal belongings for a search. Employees estimated that they would have to wait, on average, between 5-20 minutes for a manager to conduct a bag search.
Apple had relied on a long-standing principle that employee bag searches were NOT compensable time, but the California Supreme Court decided that Apple guessed wrong. The court found that the control exercised by Apple when administering its bag-check policy was time “controlled” by the employer, and thus was compensable time worked. The court looked at five factors to determine whether the employee’s time would be compensable:
whether an activity is required by the employer;
the location of the activity (e.g. on company property vs. remote);
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.
The Supreme Court’s decision in Frlekin stands as a scary reminder for California employers that if you guess wrong at the application of a given rule of law, substantial liability is ahead.
Brian Koegle is a partner in the employment and labor law department of Poole & Shaffery, LLP. He leads the transactional and litigation teams for the labor and employment division of the business law firm. For more information on Poole Shaffery & Koegle, call (855) 997-7522, or visit pooleshaffery.com. ν