208 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com ship at all times. The Court of Appeal rejected federal authority that would consider agreements between the parties governing pay for on-call work, because California law depends on the employer’s control, without regard to agreements.83 One sensible Court of Appeal decision held that if an employee is on a 24-hour shift, then an employer can deduct up to eight hours as uncompensable sleep time, so long as (1) the sleep is uninterrupted, (2) the employer provides the on-call employee a comfortable place to sleep, and (3) the employee has agreed in writing that this period would not be compensated. But then the California Supreme Court took this decision for review84 and issued a sweeping decision that further highlights how peculiar California employment law can be.85 The Supreme Court held that on-site, on-call construction site security guards were entitled to pay for all their on-call time, including their sleeping time, even though federal regulations regarding resident employees would permit the employer and employee to make reasonable agreements about the amount of uncompensated free time, and to exclude eight hours of sleep time from a 24-hour shift. 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.86 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 1947.87 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 store.88 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.89 This rule has also been extended to time spent on Covid screenings to enter the workplace.90 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.91 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.92
RkJQdWJsaXNoZXIy OTkwMTQ4