California Employers: Review Security Screenings

Employers should review their processes for screening employees on their way in to or out of work following a recent California Supreme Court decision, legal experts say. They may be required to pay workers for their time spent waiting for security scans.

Security Checks

In Huerta v. CSI Electrical Contractors, the court held that time spent on an employer’s premises awaiting and undergoing an employer-mandated exit procedure that includes the employer’s visual inspection of the employee’s personal vehicle was compensable as hours worked. The court’s ruling related to hours worked within the context of the California wage order applicable to the construction, drilling, logging and mining industries, as well as the California labor code.

The court addressed several questions in Huerta v. CSI Electrical Contractors, but the most important dealt with the issue of when an employee must be compensated for undergoing a security check in their personal vehicle as part of exiting an employer’s facility, said Joe Beachboard, an attorney with Beachboard Consulting Group in Palos Verdes, Calif. 

Building on a decision from 2020 holding that personal item searches required as part of entering the workplace are compensable time, the court held that even though an employee is in their personal vehicle, the search time exiting a facility is compensable if the employer exercises sufficient control over the employee, he explained.

In this case, the justices concluded that control existed because the wait time to leave could be five to 30 minutes, including an exit procedure of a minute or more per vehicle.

“It is important to note that the court distinguished this process from simply showing a badge or swiping a key card to gain access to the employer’s facility, which generally would not be sufficient control to make the time compensable,” he said.

However, when such security procedures are combined with mandatory vehicle inspections, the time that hourly employees spend in employer-required security checks while entering or exiting work may be compensable, said Ian Wright, an attorney with Alston & Bird in Los Angeles.

In response to the decision, “employers should audit their exit and entrance procedures,” said Debbie Birndorf-Zeiler, an attorney with Norton Rose Fulbright in Los Angeles. If the employee has to wait to begin or leave work because of an employer’s restrictions—including waiting to clock in or out or passing through a security checkpoint—this time may be compensable, she said.

“Employees must be compensated for all time they are under the employer’s control, even if they are not actually performing work duties,” Birndorf-Zeiler said.

Policies that benefit only the employer—such as mandatory vehicle inspections to prevent theft—and that make employees subject to the employer’s control, even though they’re in their own personal vehicles, likely result in compensable time, Wright said.

Employers that require employees to undergo security screening on the way in to or out of work—whether in the form of bag checks or vehicle inspections—should consider moving their time clocks to be outside the screening area, he said. That way, hourly workers would be able to clock in before going through the security screening on the way in to work and clock out after going through the security screening on the way out of work, he noted.

Although the employees in Huerta were represented by a union and covered by Wage Order 16—which applies to the construction, drilling, logging and mining industries—the court’s decision has implications for all California employers, particularly those with security entrance and exit procedures, said Jennifer Shaw, an attorney with Shaw Law Group in Sacramento, Calif. They must “carefully consider whether employees must be paid for the time they spend going through those procedures,” she said.

‘Hours Worked’

The concept of “hours worked” dictates the time for which all nonexempt employees must be paid, including overtime, and when they must take required rest and meal periods in California, Shaw explained. “Failure to consider work time as hours worked will result in significant violations of applicable wage and hour laws, and substantial employer liability,” she said.

Huerta has huge implications for how employers with large properties—such as in the construction, mining and drilling industries—pay employees, said Shannon Bettis Nakabayashi, an attorney with Jackson Lewis in San Francisco. In Huerta, the work project was far off the highway and employees had lengthy drives down an access road made even longer by environmental restrictions, such as having to drive slowly to protect endangered species.

“If all of that time is compensable time, costs increase dramatically,” she said. Nakabayashi noted that in the context of Wage Order 16, such driving is compensable driving time only if it occurs after “the first location where the employee’s presence is required by the employer.” Significantly, the court held that hours worked do not necessarily include time spent driving to an employer’s property, even if there are some restrictions over the drive, she said.

The takeaway from Huerta is that wage and hour compliance can be tricky, Shaw said.

“It’s not simply about applying common sense,” she said. “Every organization in California should have at least one employee who understands, even in the most basic sense, wage and hour laws.”

Shaw concluded that attorney advice may be needed with thorny issues because “rolling the dice certainly does not pay in this state!”