©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 205 spent during legally required 10-hour “layovers.” Upholding a jury verdict against the employer, the Ninth Circuit reasoned that the drivers could be under the employer’s “control” during the layovers simply because the employer required them to ask permission to spend their layovers at home: “control may exist even when employees are permitted to perform personal activities if the employer imposes meaningful restrictions on the employee.”57 Meanwhile, the California Supreme Court, in a 2019 case, had addressed the distinction between FLSA and California standards as to hours worked, noting that FLSA-regulated work involves exertion that is 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 employer.58 In 2020 the California Supreme Court went a further step in Frlekin v. Apple, Inc.,59 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?”60 The 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.”61 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.”62 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 compensability.63 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).64 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.”65
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