When am I “on-the-clock” under California law?

One of the most important factors in determining an hourly employees’ compensation (including overtime compensation) is determining when the employee is “on duty” or actually working for his/her employer. (For more information regarding California’s overtime laws, click here. Additionally, whether an hourly employee is “on duty” may affect the employee’s overtime and meal compensation. (For more information regarding California’s meal and rest periods, click here.

When counting the numbers of hours worked, California law only counts those hours that the 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.” (A definition of “hours worked” can be found in the applicable Industrial Welfare Commission Wage Order (click here).) The California Supreme Court has held that the two phrases—“subject to the control of an employer” and “time the employee is suffered or permitted to work”—are “independent factors, each of which defines whether certain time spent is compensable as ‘hours worked.’” See Morillion v. Royal Packing Co., 22 Cal.4th 575, 582 (2000).

Accordingly, a person is “on-the-clock” if they are subject to their employer’s control or required to be at their workplace, even if they are not necessarily working. While this definition sets out the legal standard, some examples are helpful:

Meal Breaks

During your meal breaks, you should be completely relieved of all work duty and not subject to the control of your employer. Accordingly, you should be free to leave work during your meal break and have a meal or take care of any personal matters you wish. If an employer requires you to stay on a jobsite or be available to work if needed, then you are on the clock and should be compensated. An example of this law in application is the California Appellate Court’s decision in Bono Enterprises, Inc. v. Bradshaw, 32 Cal. App. 4th 968, 975 (1995).

“On Call” Hours

Some employers require that employees be “on call” or available to work within a short period of time upon being noticed. Whether you should be compensated for “on call” is largely dependent on whether you are free to use “on call” time for your own purposes without restriction.

There is no one clear rule regarding whether “on call” time should be compensated. Instead, Courts will look at a number of factors, such as (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time.

When applying the above standard, the California Supreme Court recently decided that security guards must be compensated while they are “on call” if they are required to be on the jobsite and ready to immediately work during “on call” hours. It did not matter that the employee could still engage in personal activities, including sleeping, showering, eating, reading, watching television, and browsing the Internet. See Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4th 833 (2015).

If you have any questions regarding whether you should be compensated for “on call” hours, you may want to contact an attorney who can analyze your specific situation.

Important Note: Employers may be able to pay employees a lower wage rate for on-call time than they do for time when employees are performing actual job duties. But, if you are called to work, you should receive your regular pay.

Security Checks

Whether a person is compensated for time spent waiting for and participating in security checks is largely dependent on whether the employee could reasonably avoid such security checks. For example, a recent Federal District Court decision, held that California law does not require employers to compensate hourly employees for time they spend undergoing security checks of their personal bags because employees could avoid such checks if they keep their personal bags at home. See Frlekin v. Apple Inc., No. C 13-03451 WHA, 2015 WL 6851424, at *6 (N.D. Cal. Nov. 7, 2015). On the other hand, Courts have also held that if a security check is required of all employees, and there is no way to avoid such screening, than it must be counted as time worked. See Cervantez v. Celestica Corp., 618 F. Supp. 2d 1208 (C.D. Cal. 2009). If you have any questions regarding whether you should be compensated for time spent at a security check, you may want to contact an attorney who can analyze your specific situation.

Commutes and Travel Time

Whether travel time to and from work assignments is counted as time worked is largely fact dependent. Courts generally examine whether travel time is required by the employer and the amount of control the employer exercises over the employee during the trip. Some examples may be helpful:

• If an employee is required to report to work before proceeding to an off-premise work site, all travel time from the moment of reporting until the employee is released to proceed home constitutes compensable work time. Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000).
• If an employee is required to use a company vehicle to travel between home and work, and the employee may not use the company vehicle for their own purposes, such time may be subject to compensation.
• If any employer provides a free shuttle bus from a worksite to an off-work site parking lot, the time spent on the shuttle bus is not compensable because employees can arrange their own transportation to the worksite. Overton v. Walt Disney Co., 136 Cal. App. 4th 263 (2006).

Long distance work travel is subject to a different set of rules. Generally, time spent traveling to and from that required work assignment is counted as time worked. For example, if a person is required to take a plane to an out-of-state work assignment, then the time checking bags, going through security, waiting for the flight, flying, and getting to his or her hotel is all “hours worked.” On the other hand, time spent taking a break from traveling, such as sightseeing, is not compensated.

If you have any questions regarding whether you should be compensated for travel time, you may want to contact an attorney who can analyze your specific situation.

Meeting, lecture, and training time

California law also requires that employees get paid for work-related meeting, lectures, and training sessions unless attendance occurs outside of regular work hours, attendance is voluntary, the meeting, lecture, or training is not directly related to the employee’s job, and the employee does not perform productive work while at the meeting, lecture, or training.