Is Waiting Time Compensable Under Mandatory Security Policy?

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By Christine Pulfrey

“We are owed pay for the time after we clocked out that we waited to have our bags screened,” Margo said to her employer after stricter security measures were introduced at a technology company.

“You are not owed wages for the waiting time you could have avoided if you didn't bring a bag from home,” said Cabe, the company's lawyer.

FACTS: Concerned with internal theft of its products, an information technology company implemented a written policy that imposed mandatory searches whenever employees left the company's stores with bags, purses, backpacks or briefcases, or with a company product.

Because company timekeeping systems were within the company stores, employees had to check out before undergoing a search. The recorded hours worked did not account for time spent waiting for a search to be completed.

After checking out, employees at times had to wait for a manager or guard to conduct a search. Employees sometimes had to wait in a line at certain high-traffic times, such as the end of a shift, when multiple employees were leaving and had to be searched.

The workers, who were paid hourly and nonexempt, sought compensation for the time spent undergoing the company's mandatory searches and for time spent waiting for the searches to be completed.

The time spent waiting in line and undergoing the searches constituted hours worked subject to compensation under California law, the workers said.

California's Wage Order 4 requires employers to pay employees a minimum wage for “all hours worked in the payroll period,” and it defines hours worked as “the time during which an employer 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.”

A California Supreme Court decision said that “subject to the control of an employer” and “time the employee is suffered or permitted to work” are two prongs of a definition, and each must be considered.

The employees said that time spent waiting for and undergoing the searches qualified as hours worked under both prongs of the definition.

Employees brought bags to work for personal convenience, so they could choose to avoid employer control during the searches by declining to bring a bag, the company said.

ISSUE: Should time spent waiting for a security search be compensated?

DECISION: The workers were not “suffered or permitted to work” because the time they spent awaiting and undergoing searches had no “relationship to their job responsibilities,” a federal district court said.

The employee actions “subject to the control of an employer” must be constrained and the activity must be mandatory, the court said.

The company could have safeguarded its property by prohibiting employees from bringing personal bags and company products to work, the court said.

Allowing employees bring these items was an “optional benefit,” conditioned on compliance with the company's security screening, the court said.

The employees chose to bring personal bags to work and subject themselves to the company's search policy, so they did not satisfy the state wage law's compensable time requirement of being subject to the control of the employer, the court said.

There was no question that the searches constrained employees by requiring them to wait when they wanted to leave, but the searches were not mandatory for employees who did not bring bags or personal company products, the court said. Additionally, there was no dispute that some employees did not bring bags to work and did not have to be searched when they left the store, it said.

When the class was certified, the court addressed the possibility that certain workers might carry some items out of necessity, such as for medical reasons, and others out of convenience by inviting those having special needs to come forward so that the court could address the question of necessity, but no employees came forward, it said.

“Employee choice is dispositive,” the court said. “That free choice is fatal to their claims,” it said, ruling in favor of the company that the workers were not owed compensation for time spent undergoing the security screens (Frlekin v. Apple Inc., N.D. Cal., No. 3:14-cv-03451, 11/7/15).

POINTERS: Under California law, employers must pay hourly employees wages for all time that the employees are under the employers' control, including all the time that employees are suffered or permitted to work, even if they are not required to do so.

The California Supreme Court has ruled that included within the term “hours worked” under California Labor Code and the Industrial Welfare Commission's Wage Order 4 is all time spent at the employer's workplace and under the employer's control, (Mendiola v. CPS Security Solutions Inc., Cal., No. S212704, 1/8/15).

For more information, see Payroll Administration Guide's “California Compensable Time” chapter.

For More Information

This analysis illustrates how courts resolve pay-related disputes. The names and dialogue are fictitious.

To contact the reporter on this story: Christine Pulfrey in Washington at cpulfrey@bna.com.

To contact the editor responsible for this story: Michael Trimarchi at mtrimarchi@bna.com.