Goodwin Insights
for the California Employer
March 05, 2020

California Supreme Court Clarifies Meaning of "Hours Worked"

In its recent decision in Frlekin v. Apple Inc., the California Supreme Court ruled unanimously that time employees spend waiting for, and undergoing, mandatory bag checks before leaving work is compensable as time worked. This is so even though employees theoretically could have avoided the checks altogether by not bringing bags or other personal items requiring inspection under Apple’s “Employee Package and Bag Searches” policy to work.

Under California law, non-exempt employees must be paid for all “hours worked,” which is defined as time during which an employee is “subject to the control” of an employer or “suffered or permitted to work.” In Frlekin, the California Supreme Court rejected Apple’s argument that, for the control prong of the definition to apply, an employee’s activity must be both “required” and “unavoidable.” The Court explained that interpreting “control” to include “only unavoidably required employer-controlled activities would limit the scope of compensable activities, resulting in a narrow interpretation at odds with” the relevant wage order’s “fundamental purpose of protecting and benefiting employees.” The Court agreed that whether an employer requires a particular activity remains relevant to determining whether an employee is subject to the employer’s control while engaged in the activity, but it made clear that other factors should also be considered, including the location of the activity, the degree of employer control during the activity, whether the activity primarily benefits the employee or the employer, and whether the activity is enforced through disciplinary measures.

In 2014, in a case called Integrity Staffing Solutions, Inc. v. Busk, the United States Supreme Court held that time employees spend awaiting bag checks is not compensable work time under the federal Fair Labor Standards Act. As a result, this is one more area where California employment law exceeds the requirements of federal law.

While the Court in Frlekin considered the “control” prong of the “hours worked” definition in the specific context of bag checks, its holding will be relevant in the context of other employer-controlled activities as well. California employers should remember that just because a particular work-related activity is voluntary does not mean that non-exempt employees who engage in the activity do not need to be compensated for the time they spend engaged in the activity. Evaluating whether such “voluntary” activities qualify as compensable time may require a case-by-case evaluation with the assistance of counsel.