Employers must pay non-exempt employees for all "hours worked." The term "hours worked" is defined 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." Cal. Code of Regulations, Title 8, Sec. 11070.2(G).
The question is what is "control"? Does it include the searches of bags that employees brought for their purely personal uses? What if employees could simply leave their bags inside their cars and avoid the searches? The Supreme Court of California answered this question in favor of employees. It ruled that "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" is part of "hours worked." It further held that Apple employees were clearly under Apple’s control while awaiting, and during, the exit searches.
In coming to this conclusion, the court considered, and employers should keep in mind, the following factors:
- Were the searches conducted on the employer's premises?
- Were the searches optional or mandatory?
- Were the searches made primarily for the employer's benefit?
- Was the employee's off-duty time so substantially restricted that they were unable to engage in private pursuits?
- Were the searches enforceable by disciplinary actions?
- Did the employer's written policies explicitly provide that failure to comply with the bag-search policies may lead to disciplinary actions?
- Was there a genuine choice as a practical matter concerning bringing a bag to work?
Employers should carefully examine the time employees spend on certain activities and determine whether this time is compensable or not. The activities may include not only mandatory searches but also optional meetings, company lunches, travel from one job site to another job site, and on-call time.
Note: this blog does not cover classification (exempt v. non-exempt) or the "suffered or permitted to work" prong of the "hours worked" definition.