We have previously notified clients that time spent on the employer’s premises waiting for, and undergoing, required exit inspections or searches of packages, bags or personal technology devices is compensable as hours worked. (Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038.) Several clients are now asking whether time spent by employees submitting to temperature scans is also compensable time.
California’s definition of “hours worked” is broader than the federal definition of the term. Under federal law, “hours worked” includes the time an employee is suffered or permitted to work. California’s definition of “hours worked” is whenever the employee is “subject to the control of the employer,” including when the employee is suffered or permitted to work. It is this broad definition – subject to the control of the employer – that creates potential liability for an employer who requires an employee to submit to an inspection of bags as in the Frlekin case, sit on a bus traveling to the worksite, as in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, or waiting for, and submitting to, a temperature scan.
In Frlekin, the Supreme Court has noted several elements of control: (1) Employees must wait for, and submit to a search; (2) the employer confines the employee to the premises as they wait; (3) the employee must wait for a security guard, open bags and provide a personal technology card; and (4) the activity primarily benefits the employer as opposed to the employee.
These are the same considerations an employer should consider as it compels an employee to submit to a temperature scan. I would also add another factor – the time involved.
For many employers, the temperature scan is no more than a 3-5 second act. That is the typical time an employee in my office spends while a temporal thermometer scans an employee’s forehead. The employee hardly breaks stride to have the scan performed. Assuming an employee immediately logs in after the scan, the 3-5 second delay probably does not affect the time worked.
In my case, the employee manually notes time arrived on a time card. Employees who manually record their time can record the minute they walked in and became subject to the scan.
A temperature scan may or may not affect the arrival time in those workplaces where timekeeping is computerized or electronic. If the scan takes 3-5 seconds, the computerized or electronic system is likely to record the time of arrival accurately, since the system records time by the minute, not the second. In fact, this might be a proper application of the de minimis rule which has very limited application under California law. This rule allows an employer to ignore trivialities when calculating hours worked. However, many employers have tried to use this rule to justify longer periods of time that could be recorded on a time card.
If an employee must wait in line and the process takes longer than a few seconds, it is possible that the arrival time recorded is affected by the longer scanning process. In this situation, it is likely that the time spent waiting and participating in the scanning process constitutes “hours worked.”
Wage and hour litigation is a burgeoning business in California. Lawyers are filing lawsuits based on inadvertent and seemingly inconsequential underpayments of wages. These allegedly small errors, when grouped as a class or into a PAGA lawsuit, can result in a substantial settlement or judgment. Of course, attorneys’ fees are often a significant portion of the settlement or judgment.
I often advise employers to “avoid the claim.” The claim itself has an economic value consisting of the time, effort and expense of responding to a claim, and paying any settlement. Frequently, an employer is best served by avoiding the claim, although it may cost more to operate the business.
I also recommend that employers undergo wage and hour audits of their workplace practices by a lawyer. While an audit cannot guarantee a claim won’t be filed, it can reduce the risk of the lawsuit, and the chances that a plaintiff prevails. We have performed many of these audits. Our clients have identified company practices that could result in potential claims, and have modified those practices to avoid those claims. The fact that a lawyer performs the audit shields the work from discovery and allows the employer to communicate freely and candidly understanding that the attorney-client privilege protects those communications.