©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 299 72 DLSE Opinion Letter 2002.12.11. 73 IWC Wage Orders § 4(C) (an exception applies for employees residing at the place of employment). “Split shift” is defined elsewhere: “Split shift” means a work schedule that the employer has interrupted with non-paid non-working periods, other than “bona fide rest or meal periods.” Wage Orders § 2(Q). 74 See, e.g., Galvez v. Federal Express Inc., 2011 WL1599625, at *8-9 (N.D. Cal. April 28, 2011) (“The plain language of the split shift regulation reflects an intent to ensure that an employee who works a split shift must be compensated highly enough so that he or she receives more than the minimum wage for the time actually worked plus one hour.”). 75 Aleman v. AirTouch Cellular, 209 Cal. App. 4th 556, 575 (2012) (“compensation was not owed because every time [the employee in question] worked a split shift, he was paid a total amount greater than the minimum wage for all hours worked plus one additional hour”). 76 Morillion v. Royal Packing Co., 22 Cal. 4th 575, 584 (2000) (employer that requires employees to travel to work site on its buses must compensate them for time spent traveling on buses and for time spent waiting for buses after employee has arrived at designated waiting site at designated time; time subject to control of employer is hours worked under definition provided in California Wage Order). Cf. Overton v. Walt Disney Co., 136 Cal. App. 4th 263 (2006) (where employer provided employees with parking a mile distant from the work site and provided shuttle that employees were permitted but not required to take between parking lot and work site, employer need not compensate employees for time spent on shuttle). See generally Frlekin v. Apple Inc., 8 Cal. 5th 1038, 1051 (2020) (“Commuting is an activity that employees ordinarily initiate on their own, prior to and after their regular workday, and is not generally compensable.”). 77 Rutti v. Lojack Corp., 596 F.3d 1046 (9th Cir. 2010). 78 Hernandez v. Pac. Bell Tel. Co., 29 Cal. App. 5th 131 (2018) (“[B]ecause the plaintiffs here were not required to use the company vehicle to commute to work, they were not under the control of the employer. Further, simply transporting tools and equipment during commute time is not compensable work where no effort or extra time is required to effectuate the transport.”) (emphasis in original). 79 Oliver v. Konica Minolta Business Solutions U.S.A., Inc., 51 Cal. App. 5th 1 (2020). 80 Gutierrez v. Brand Energy Services of California, Inc., 50 Cal. App. 5th 786 (2020). 81 DLSE Enforcement Policies and Interpretations Manual § 46.1.1 (2002) (California does not distinguish between compulsory travel during “normal” working hours and compulsory travel outside “normal” hours, because these “distinctions, and treatment of some of this time as noncompensable, are purely creatures of the federal regulations, and are inconsistent with state law”). 82 See, e.g., Berry v. Cnty. of Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994) (“the two predominant factors in determining whether an employee’s on-call waiting time is compensable overtime are (1) the degree to which the employee is free to engage in personal activities; and (2) the agreements between the parties) (internal quotation marks omitted). See generally 29 C.F.R. § 785.14-17 (examples on whether, under the FLSA, an employee is waiting to be engaged or is engaged to wait). 83 Seymore v. Metson Marine, Inc., 194 Cal. App. 4th 361, 365 (2011). 84 Mendiola v. CPS Security Solutions, Inc., 217 Cal. App. 4th 851 (2013), rev. granted, No. S212704, 163 Cal. Rptr. 3d 1 (2013). 85 Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015). 86 Id. at 843 (“we decline to import any federal standard, which expressly eliminates substantial protections to employees, by implication”; “where the language or intent of state and federal labor laws substantially differ, reliance on federal regulations or interpretations to construe state regulations is misplaced”) (citations omitted). 87 Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 135 S. Ct. 513, 519 (2014). 88 See, e.g., Kurihara v. Best Buy Co., 2007 WL 2501698 (N.D. Cal. Aug. 30, 2007); Rodriguez v. Nike Retail Servs., Inc., 2016 WL 8729923 (N.D. Cal. Aug. 19, 2016); Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 311 F.R.D. 590, 593 (C.D. Cal. 2015); Cervantez v. Celestica Corp., 253 F.R.D. 562 (C.D. Cal. 2008). 89 Frlekin v. Apple Inc., 8 Cal. 5th 1038, 1042 (2020) (“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 Wage Order 7? For the reasons that follow, we conclude the answer to the certified question is, yes.”). See § 7.3.2. 90 See, e.g., Boone v. Amazon.com Servs., LLC, 562 F. Supp. 3d 1103 (E.D. Cal. 2022) (denying motion to dismiss; holding that the complaint alleged time spent on COVID screening was under the employer’s control and therefore compensable). 91 Lab. Code § 226(a); Wage Orders § 7. 92 Lab. Code § 1174(d). 93 Seymore v. Metson Marine, Inc., 194 Cal. App. 4th 361, 365 (2011) (“We agree with plaintiffs that it is not permissible for Metson to artificially designate the workweek in such a way as to circumvent the statutory requirement to pay overtime rates for the seventh consecutive day worked in a workweek.”). 94 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). 95 Corbin v. Time Warner, 821 F.3d 1069, 1080 (9th Cir. 2016). 96 E.g., Chavez v. Converse, No. 5:15-cv-03546-NC (N.D. Cal. October 11, 2017) (granting summary judgment to employer where average inspections took a few seconds and did not take more than 10 daily minutes in the aggregate, and where there were legitimate business reasons not to place time clocks at the front of the store); Rodriguez v. Nike Retail Servs., Inc., 2017 WL 4005591 (N.D. Cal. Sept. 12, 2017) (generally the same). 97 DLSE Enforcement Policies and Interpretations Manual § 47.2.1 (2002) (citing Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984): “In recording working time, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” See also Gomez v. Lincare, 173 Cal. App. 4th 508,
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