Employers must pay their California employees for time spent on the employer’s premises waiting for and undergoing required exit searches of employee’s bags, packages, and other personal items, even if these items were voluntarily brought by the employees for their convenience.

On February 13, 2020, the California Supreme Court made this clear in Amanda Frlekin v. Apple, Inc., sending a reminder to California employers that they must pay for every minute worked by their employees.

Background Facts of Frlekin

The employer’s policy required employees to undergo exit searches of their bags, purses, backpacks, and personal devices after they clocked out to end their shift. Employees estimated that they waited about five to 20 minutes for these exit searches but sometimes as long as 45 minutes. Plaintiffs filed a class action in alleging that the employer failed to pay its employees minimum and overtime wages for the time spent waiting to undergo these exit searches.

The district court granted summary judgment, holding that time spent by employees waiting for and undergoing these exit searches was not compensable as “hours worked” under California law and Wage Order No. 7. That provision defines “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so[.]”

After Plaintiffs appealed, the U.S. Court of Appeals for the 9th Circuit asked the California Supreme Court to decide whether California state law required the time spent during these exit searches be compensable as “hours worked.”

The California Supreme Court's Decision in Frlekin

The California Supreme Court held that time spent by employees waiting for and undergoing these mandatory exit searches was compensable time.

The Court explained that the two phrases of the “hours worked” definition are independent factors, so that “an employee who is subject to the control of an employer does not have to be working during that time to be compensated under the applicable [California] wage order. Likewise, an employee who is suffered or permitted to work does not have to be under the employer’s control to be compensated, provided the employer has or should have knowledge of the employee’s work.”

Focusing on the “control” factor, the Court reasoned that employees are “clearly” subject to the employer’s control during these searches because the employer:

  1. Requires its employees to comply with the mandatory search policy under the threat of discipline, including termination;

  2. Confines its employees to its own premises as they wait for and undergo the exit searches, increasing the level of employer control; and

  3. Compels its employees to perform specific and supervised tasks while waiting for and during the searches, including searching for a manager or guard, waiting for those persons to become available, opening all bags, and removing devices and other items for inspection.

The Court recognized that whether an employee’s activity “primarily benefits the employer” is a “relevant consideration” in the “control” factor analysis. The Court found that the exit searches are mainly for the employer’s benefit by helping to reduce theft.

The Court rejected the argument that the searches are voluntary because employees can avoid the exit searches by choosing to not bring these items (though the Court noted this is not practical or feasible in today’s world). The Court held that the fact there is a “choice” does not invalidate the claims of those employees who do bring bags and are, nonetheless, required to remain on the employer’s premises while waiting for and undergoing the searches.

Because the Court held that the exit searches are compensable under the “control” clause, the Court did not address whether the searches are compensable under the “suffered or permitted to work” clause in Wage Order No. 7.

The Court held that the Frlekin decision applies retroactively.

Key Takeaway for Employers

The Frlekin decision is a reminder that federal and state law differ on whether or not employee time is “compensable.” The distinction is significant in California and leads to more employee time being “compensable” under the state law.

No Portal-to-Portal State Equivalent

In 2014, the U.S. Supreme Court in Integrity Staffing Solutions, Inc. v. Busk held that post-shift security screenings were not compensable time under the Fair Labor Standards Act (FLSA). The holding is based on the Portal-to-Portal Act, which is an amendment to the federal FLSA that excludes certain preliminary and postliminary activity from counting as compensable time unless it is the “principal activity” for which an employee is engaged or involves activities “integral and indispensable” to the principal activity.

However, California state law is more generous in defining compensable time. California has no parallel version of the federal Portal-to-Portal Act in its state law nor has California adopted definitions of compensable time that are FLSA-identical. Instead, the California Supreme Court applied a more expansive test focused on “control” of the employee by the employer which, in the case of security screenings, resulted in an outcome completely the opposite of the FLSA.

Limited De Minimus Doctrine

In 2018, the California Supreme Court in Troester v. Starbucks Corp. addressed the viability of the federal de minimis doctrine under California law. The de minimis doctrine is a long-standing principle developed under the FLSA and codified as a federal regulation that states that “insubstantial or insignificant periods of time beyond scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.”1

However, the Court held that the de minimis doctrine did not apply to the particular facts before it, because nothing in the text or legislative history of the California Labor Code or the Wage Orders permits an employer to require employees to routinely perform work without compensation, regardless of how few the number of minutes spent.

The Court did not entirely foreclose application of the de minimis doctrine under California law; instead, it found that there might be other circumstances involving tasks “that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”

Practical Solutions

California employers should revisit their current policies and practices for non-exempt employees to ensure that all work—including time spent waiting during security searches like in Frlekin—is compensated. California employers must tighten up their timekeeping and compensation practices to the extent possible to reduce, if not eliminate, the possibility of uncompensated work activities.

California employers should consider implementing the following measures:

  • 1. Adopt and revisit existing written policies that emphasize that all time worked is to be recorded, that off-the-clock work is strictly prohibited, and that employees engaging in off-the-clock work and supervisors permitting such work will be subject to discipline.

    Boilerplate or off-the-shelf language may not suffice for work environments that have off-the-clock work already baked into the daily operation (such as routine post-closing activities done after clocking out), so policies must be tailored to the employer’s particular circumstances.

  • 2. Record and pay for every minute worked by employees. This includes time spent performing small, seemingly insignificant tasks, particularly if those tasks are a part of the employee’s job duties, are regularly-occurring, and are easy to capture given available technology.

    This encompasses paying for every minute employees are required to wait before or after work, such time spent waiting to clock in or clock out from lunch or at the beginning or end of the shift, and time spent putting on or removing work-related gear, clothing, or equipment (i.e., donning and doffing).

  • 3. If employers require their employees to undergo exit searches or other security checks before or after work, employers must pay employees for this off-the-clock time spent waiting. Reduce the owed wages for this time by streamlining these security searches or by implementing better timekeeping technology that allows employees to track their time to the minute.

    Consider adding a few minutes of additional compensation to certain employees to cover any unrecorded time if the time cannot be captured due to administrative burden.

  • 4. Train supervisors to strictly enforce prohibitions on off-the-clock work. Likewise, employees must be trained to clock in before performing any tasks for the employer’s benefit and to do the same before clocking out at the end of the shift.
  • 5. Establish mechanisms for employees to raise concerns or complaints about off-the-clock work so that any issues can be promptly addressed. Forms regularly signed by employees that confirm their time worked are one way to counter an employee claiming unrecorded work.
  • 6. Because the Frlekin decision applies retroactively, employers who may face risk based on past practices should consider whether to compensate for disputed past time worked in exchange for a release of claims.

1  29 CFR section 785.47