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California Supreme Court Issues Decision on Construction Employees’ Travel Time
Courtesy of Atkinson, Andelson, Loya, Ruud and Romo 3/25/2024
On March 25, 2024, the California Supreme Court issued a long-awaited decision on the compensability of travel time to and from a construction project under California law. In Huerta v. CSI Electrical Contractors (Supreme Court Case No. S275431), the Court answered three questions certified to it by the United States Court of Appeals for the Ninth Circuit:
- Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, having security guards peer into the vehicle, and then exiting a security gate compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order 16?
- Is time spent on an employer’s premises in a personal vehicle, driving between the security gate and the employee parking lots, while subject to certain rules of the employer, compensable as “hours worked” or as “employer-mandated travel” within the meaning of IWC Wage Order 16?
- Is time spent on an employer’s premises, when employees are prohibited from leaving but not required to engage in employer-mandated activities, compensable as “hours worked” under Wage Order 16 or under Labor Code section 1194, when that time was designated as an unpaid ‘meal period’ under a qualifying collective bargaining agreement (CBA)?
The Court largely answered these questions in the affirmative, with certain qualifications It found that the exit process is compensable, and that the travel time between the security gate and the parking lots is compensable as “employer mandated travel” if the security gate was the first location where the employee’s presence was required “for an employment-related reason other than the practical necessity of accessing the workplace.” And the Court found that the unpaid meal period is compensable if the employer “prohibits the employee from leaving the employer’s premises or a designated area during the meal period and this prohibition prevents the employee from engaging in otherwise feasible personal activities.”
The case involved employee travel to and from the California Flats Solar Project in Monterey and San Luis Obispo Counties, at which there was a designated road which provided access between a guard shack located at the site’s perimeter and the employee parking lots. A security gate was located on that road, from which it would take employees such as the plaintiff George Huerta 10 to 15 minutes to reach the parking lots in their personal vehicles. Huerta underwent security checks at the security gate and contends that he was told by management of his employer that the gate was the first place he had to be at the start of the workday. Vehicles formed a long line outside the security gate where guards scanned the employees’ badges and peered inside vehicles and truck beds at the beginning of the workday. They performed these same functions at the end of the workday (during which the exit procedure could allegedly take between five and thirty minutes) by visually inspecting the truck beds for stolen tools or endangered species. Huerta was not paid for the time he spent waiting to pass through the security gate at the beginning or end of the workday.
Huerta was also not paid for the time spent driving between the security gate and the employee parking lots, during which he was required to honor a 20 mile per hour speed limit in order to not disturb endangered species’ habitats and to avoid honking his horn or playing loud music that could disturb local wildlife. Violation of these work rules could subject him to suspension or termination. Huerta’s employment was governed by a CBA which specified that the standard workday included an unpaid 30 minute meal period, and Huerta alleged that employees were not allowed to leave the site during their meal periods.
The Court began its analysis by reiterating the two grounds upon which time can be counted as “hours worked: (1) time during which an employee is “subject to the control of the employer,” and (2) time the employee is “suffered or permitted to work, whether or not required to do so.” The Court noted that an employee does not have to be actually working when subject to an employer’s control, and an employee who is “suffered or permitted to work” does not have to be under an employer’s control “provided the employer has or should have knowledge of the employee’s work.”
Relying largely on the case of Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, which held that time spent by Apple employees to undergo exit searches including bag checks when leaving Apple stores, the Court held that time spent during the exit procedure was compensable because it was strictly required of every employee, prevented the employee from using the time for their own purposes, and required the employee to perform specific and supervised tasks such as driving to the security gate, rolling down their window to present their identification badges, and submitting their vehicle to visual inspection and possible physical search. The Court also found the exit procedure to be compensable because the employer required employees to undergo it primarily in service of its own interests as opposed to those of its employees. The Court rejected the employer’s contention that the security checks were strictly for the purpose of ingress or egress.
As to the second question, the Court found that the travel time between the security gate and the employee parking lots constituted compensable employer-mandated travel time based on Section 5(A) of Wage Order 16, which provides that such time must be paid at the employer’s regular rate of pay when the travel occurs “after the first location at which the employee’s presence is required.” While stating that “standard commutes need not be compensated in California,” the Court stated that the time could be compensable if it was determined that the employer “directed and commanded” that the employees drive from the security gate to the employee lots “for an employment-related reason other than accessing the worksite,” but refused to decide whether that test had been met in the instant case. At the same time, the Court concluded that this travel time did not constitute compensable work time under the “hours worked” test, because the speed limit and other “rules of the road” employees were required to observe are necessary and appropriate in virtually every workplace and did not amount to a level of control sufficient to render the travel time compensable. The Court also found that this travel time was not time that the employees were “suffered or permitted to work,” because simply driving their personal vehicles on an access road was not a task “that a manager would recognize as work.”
Finally, with respect to the unpaid meal period issue, the Court construed the employer’s argument as enabling employees and employers to “bargain away employees’ right to an on-duty meal period,” which it rejected. Instead, it interpreted the Wage Order to enable parties to CBAs to negotiate voluntary on-duty meal periods, which neither party contended was done in this instance. The Court specifically found that the Wage Order exemptions from meal period requirements for employees working under qualifying CBAS did not override their right to seek compensation in the form of at least minimum wages for hours worked during an unpaid meal period. The Court further held, consistent with prior case law, that such compensation is required when an employer prohibits an employee form leaving the premises and forecloses the employee from engaging in activities that they could have engaged in if permitted to leave. However, the Court did not undertake to decide whether the unpaid meal period was compensable in this case, even though Huerta claimed that he was required to stay at an assigned work area, because it was uncertain whether the restrictions on travel at the site would have rendered him unable to engage in personal activities he “would otherwise have been able to engage in.”
The decision is important because it clarifies the two work situations in which an employee is entitled to compensation: (1) if the employee is “under the control” of the employer,” and (2) if the employee is “suffered or permitted to work.” The Court provides guidance to the lower courts in defining when “control” is sufficient to justify compensation, and whether driving a personal vehicle is “work.”
Based on the Court’s decision, employers should consider the following to reduce risk going forward:
- Eliminate or reduce security checks to the extent feasible;
- Place as few restrictions as possible on the activities employees may engage in while traveling to and from work in company vehicles; and
- Do not prohibit employees form leaving a work site during meal or rest breaks.
In the interest of full disclosure, AALRR was counsel for three employer associations which submitted “friend of the court” briefs in this case. Employers with questions about the case the issued raised in the case may reach out to the authors or their usual employment law counsel at AALRR.
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Cal/OSHA Publishes Model Workplace Violence Prevention Plan, Resources
JAMES W. WARD MARCH 6, 2024 1038
Last year, California Governor Gavin Newsom signed Senate Bill 553, creating a new general industry workplace violence prevention standard. As previously reported, effective July 1, 2024, California employers need to implement and maintain a comprehensive workplace violence prevention plan, which they may incorporate into their Injury and Illness Prevention Program (IIPP) or maintain as a separate document. Employers are also required to conduct workplace violence training and create workplace violence incident logs.
The California Division of Occupational Safety and Health (Cal/OSHA) is responsible for enforcing this new law. To help employers with drafting their plan, Cal/OSHA recently published a model workplace violence prevention plan along with fact sheets. Similar to Cal/OSHA’s model COVID-19 Prevention Plan, the model workplace violence prevention plan contains:
- An overview of the law;
- Directions for drafting the plan;
- Key legal definitions; and
- A framework of all required plan components with areas for employers to customize the plan based on their particular worksite.
Employers are not required to use Cal/OSHA’s model workplace violence prevention plan, but it may help employers start drafting their plan. In addition to fill-in-the-blank prompts for the employer’s information, the model workplace violence prevention plan contains questions and examples that may be helpful to employers considering how to set up their plan.
Cal/OSHA’s employer fact sheet details the requirements of the new law, including what information must be included in the workplace violence prevention plan, violent incident log requirements, training employees on workplace violence, recordkeeping requirements, and additional related information and resources.
July 1 will be here before you know it — on that day, employers will need to have their workplace violence prevention plan in place. Due to the comprehensive and worksite specific nature of the workplace violence prevention plan requirements, employers should start drafting it well in advance of July 1. If employers haven’t started already, Cal/OSHA’s model workplace violence prevention plan is a great place to start.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
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What has to be on a California pay stub?
California employers have to provide an itemized wage statement or pay stub to their employees.
These employee pay stubs must be provided on paydays or at least semi-monthly.1 Under California Labor Code section 226(a), these pay stubs must include the following information in the itemized statement:
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Employee identification: Your full name and either your last 4 digits of your Social Security Number or your employee identification number
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Employer identification: The company’s name and address
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Pay period: The inclusive dates of the pay period covered by the wage statement
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Hourly wage: In California, this can be no less than $16.00 an hour
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Hours worked: The total number of hours worked in the pay period at each rate and how many of them are overtime hours, if any (hours worked is not necessary for salaried or exempt employees)
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Gross wages: This is everything earned prior to deductions being taken out – in addition to standard wages, overtime, and fixed salaries, gross wages include commissions, piece-rate payments, project/task-based payments as well as room, board, and clothing (if received as part of compensation)
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Deductions: This includes itemized deductions, social security and tax withholdings, retirement contributions (such as 401Ks), health insurance premiums, etc.
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Net wages: This is what is left after all the deductions have been subtracted from your gross wages
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PTO: The amount of accrued paid vacation time or accrued sick time earned over the pay period (employers can put “unlimited” if applicable).2
Piece-rate workers
If you are paid on a piece-rate basis rather than hourly, the wage statement has to include:
- the applicable piece rate, and
- the number of piece rate units that you produced.
When applicable, pay stubs for piece-rate workers must also include:
- the rate for hours paid in each category,
- total hours worked in compensable nonproductive time,
- total hours of compensable recovery and rest breaks, and
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gross wages for nonproductive time, recovery and rest breaks.3
If your employer is a temporary service employer, often known as a temp agency, your pay stub must include the rate of pay and hours worked for each assignment.4
All of this information must be included on your pay stub even if you are paid with cash.5 However, wage statements tend to be a detachable part of your paycheck or the direct deposit statement that is normally provided with your payment of wages.
If any of this required information is missing or is incorrect, it may violate California’s wage and hour laws. You may have legal recourse.
What if I am an exempt employee?
If you are an exempt employee, your pay stub does not need to include information about the number of hours that you worked during the pay period.
Exempt employees earn a salary rather than an hourly wage. They are also exempt from many wage and hour laws in California. For example, they are not entitled to overtime pay.
To qualify as an exempt employee under California employment law, you must meet the requirements for an exemption, like the:
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California Updates Mandatory New Hire Pamphlets
By: Roger M. Mason, Esq., Rachael E. Brown, Esq., Caitlin E. Kaufman, Esq.
California recently updated two pamphlets that employers must provide to new hires:
(1) The California Department of Industrial Relations Division of Workers Compensation updated its Time of Hire pamphlet. This document explains what workers' compensation is, how to file a claim, and how to navigate obtaining workers' compensation-related medical care;
(2) The Employment Development Department (EDD) updated its For Your Benefit pamphlet. Employers must provide this document upon hire and at the time employment ends. The document explains what state-provided benefits are available upon the termination of employment and during certain leaves of absence. It also provides information on how to obtain unemployment insurance benefits and eligibility for state disability insurance.
Employers should take this opportunity to make sure that all of their new hire forms, including these required pamphlets, are up to date.
For more information about any of these employment legal updates, please contact our employment team at 408-356-3000 or via email: Roger Mason at rmason@smllp.com, Rachael Brown at reb@smllp.com, or Caitlin Kaufman at ckaufman@smllp.com.
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Upgrades to DIR’s Public Works Website Services
DIR is excited to announce that we are currently upgrading our Public Works website services (e.g., PWC100, eCPR, PWCR) to deliver a more seamless, distinctive constituent experience, able to adapt to the changing needs of entities and workers in California.
This modernization of Public Works’ website services will make interactions with DIR easier and more efficient. Key improvements DIR’s constituents can expect include:
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Combined Common Portal: Single, unified, and reliable system replacing PWC100, PWCR, and eCPR websites to streamline user experience and remove duplicative processes (e.g., project registration and linking).
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Instant Prevailing Wage Lookup: Simplified search mechanism, determining detailed prevailing wage with a single query for any given worker on a particular project, inclusive of predetermined increase breakdowns and overtime rates. Ability to download data in delimited text file format.
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Increased System Reliability and Responsiveness: Faster and consistent system performance, even during peak periods, enhancing experience of completing tasks such as project registration.
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Enhanced Capabilities: More robust self-service and payment management features, including abilities to edit registration details, add new users, reset passwords, associate with subcontractors, and clearly view payment totals.
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Improved eCPR Process: Accelerated eCPR upload speeds with the ability to easily edit or correct submissions, save worker profiles/templates, duplicate previous submissions, and group workers for batch submissions.
DIR is committed to improving the customer experience for our constituents and we recognize the importance of this technology modernization in achieving that commitment.
Upgrades to the DIR Public Works website services will launch later this year, with updates released on a rolling basis. Resources, training, and relevant updates will be shared in the coming months. Stay tuned!
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