Many of our employees have to spend time at the workplace before and after their actual work. They have lengthy security checks, protective equipment that must be donned, and then a 15-minute ride to their workstations. The employees are saying that they should be paid for all this time, but I don’t think so because it’s not part of their jobs. How do we decide what’s compensable? — Paul J., HR Manager in Redding
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
There are actually two different questions here—pay for preparations required just before work starts and pay for travel time—though they both relate to whether certain preliminary activities are “hours worked” under federal and state law and are therefore compensable. Note that federal and state law differ concerning whether travel time and donning and doffing uniforms and equipment count as hours worked.
Donning and Doffing
Under federal and state law, hours worked are defined as when an employee is “suffered or permitted” to work. Under California law, hours worked are also defined as the time an employee is “subject to the control” of the employer. This additional provision has made state law stricter and resulted in circumstances in which time spent under federal law may be uncompensated while under California law it must be compensated. Paul must comply with the stricter California law.
The state labor commissioner has concluded that certain preliminary activities constitute hours worked within the meaning of the applicable Industrial Welfare Commission Wage Order. The situation the labor commissioner reviewed involved an amusement park where employees had to wait in line, often with hundreds of other employees, to obtain their uniforms and had to change into their uniforms before they were allowed to clock in. Under the test of whether an employee is subject to the control of the employer, the labor commissioner found that all of this time must be compensated.
The time spent in long security checks and donning protective equipment also appears to be time subject to the control of the employer and it, too, likely must be compensated.
Under federal law, the compensability of time spent donning and doffing may also depend on whether there is a collective bargaining agreement or a “work practice in a union shop” that historically treats time that would otherwise be compensable as noncompensable. There is also confusion depending on where the employer operates; in some areas, the collective bargaining agreement exception may be applied differently due to conflicting court interpretations.
Travel Time
Travel time in company vehicles has been the subject of litigation in California. In one case, the state Supreme Court considered the compensability of time spent by farm workers who were required to meet at a central location and then ride buses to the fields. The court ruled that the riding time was hours worked because the requirement to ride the buses made the time subject to the employer’s control. In an appeals court case, employees were given the option of riding a company bus from a satellite parking lot. Because they were not required to ride the bus, they were not subject to the employer’s control and therefore the time riding the bus for those who did was not compensable.
If the 15-minute ride mentioned in Paul’s question is not in a company vehicle but is in the employee’s own vehicle, the ride time may or may not be compensable. Assuming the security check is as lengthy as suggested in the question and the protective equipment is also time-consuming to put on, the time in the employee’s own vehicle would likely be compensable under the “continuous workday rule”—once the workday starts, the subsequent time is generally compensable until the workday ends (except for a meal period). On the other hand, if the time spent walking through security and putting on equipment or a uniform is minimal, it is possible that the time spent in a private vehicle might not be compensable.
With all the potential variables affecting whether the time is compensable, Paul should consult with a labor attorney to get a definitive answer to his question.
Lloyd W. Aubry, Jr., Esq., former California labor commissioner, is of counsel at the San Francisco office of the law firm Morrison & Foerster LLP.