California wage laws have taken another alarming departure from federal standards. The highest state court recently held in Frlekin v. Apple that non-exempt employees must be paid for the time their bags and personal belongings are inspected before leaving the office. According to the California Supreme Court, that time is compensable even though the employees brought the items voluntarily and for their own benefit. The determinative question for the court was whether they remained under the employer’s control during inspection time.
This decision is yet another example of California taking an approach dramatically unfavorable to employers and directly contrary to federal law. For example, six months ago, the same California court in Troester v. Starbucks held California employers cannot rely on the de minimis defense that is permitted for federal wage-and-hour claims.
In light of these decisions, we recommend that California employers strongly consider devising methods to track small amounts of regularly occurring work time. These alternatives may include:
- using mobile timekeeping applications;
- using timecard/badge systems near entrances and exits; and/or
- estimating work time through surveys or fair rounding policies.
Employers also should review handbook guidance on pre- and post-work, and clocking in and out, to ensure these policies properly advise employees on procedural compliance. And, given the possible retroactive applicability of the decision, employers should consider auditing past practices and possibly providing back pay to affected employees in exchange for legal waivers.
