Friday, April 5, 2024

Guidance from Dennis Cook, Partner at Cook Brown, LLP

A WECA Industry Partner


 

When Is Entering and Leaving a Jobsite Compensable Work Time?

Guidance from Dennis Cook, Partner at Cook Brown, LLP

The question of when an employee’s compensable workday begins seems simple enough; it’s when an employee starts work, right? However, since California law says that “hours worked” includes all time when an employee is under the control of an employer or is suffered or permitted to work, the workday has been stretched to include time that historically may not have been treated as paid time.

The California Supreme Court reviewed another example of this recently in the case of Huerta v. CSI Electrical Contractors where the court analyzed three issues under Wage Order No. 16 applicable to onsite construction. One of these issues involved whether workers employed by an electrical contractor on a solar project who entered the jobsite in personal vehicles and waited at a security gate for a security guard to scan identification badges and inspect vehicles is compensable hours worked.  

The Court held that this time may be compensable “employer-mandated travel” under Section 5(A) of Wage Order No. 16 which says “All employer-mandated travel that occurs after the first location where the employee's presence is required by the employer shall be compensated at the employee's regular rate of pay or, if applicable, the premium rate … .” The Court said that an employee's presence is “required by the employer” within the meaning of Section 5(A) when it is for an employment-related reason and not for the practical necessity of reaching the worksite. 

In addition to time required for access and inspection at a security gate, other examples of compensable worktime at the beginning of the workday would include:

·        picking up tools or equipment at the shop before going to the jobsite;

·        coming to the shop or yard and loading material; and

·        having employees meet at the shop or other location to receive orders or directives.

General contractors usually control access to jobsites and subcontractors should be mindful of these rules. Generally, merely entering through a jobsite gate and travelling from the gate to a parking lot is not compensable worktime, but the court in the CSI case suggests that relevant factors to determine whether this time could be converted to compensable work time are:

·        the purpose served by the employee’s presence at the gate;

·        the activities that occur at the gate; and

·        how much time is spent there. 

The extent of travel restrictions on the jobsite will also be examined, but the court noted that rules designed to ensure safe, lawful, and orderly conduct while travelling are appropriate and do not impose a level of control causing the travel time to be compensable.

The court also reviewed the jobsite exiting process and imposed a stricter standard determining that an employee’s time spent on an employer’s premises awaiting and undergoing an employer-mandated exit procedure, including a visual inspection of the employee’s personal vehicle, is compensable work hours under Section 2(J) of Wage Order No. 16. While the court recognized that merely stopping at a gate in a parking garage probably is not compensable work time, it noted in this instance that “when an employee spends time on his employer's premises awaiting and undergoing an exit security procedure that includes a vehicle inspection causing delay and that is mandated by the employer for its own benefit, the employee—even when in his personal vehicle—is subject to the employer's control, and the time is compensable”. As noted, a good rule-of-thumb is to review the GC’s jobsite access procedures to determine the level of control related to the exiting procedure. Flashing a badge to exit is probably insufficient to require the time to be compensated, but if this is accompanied by a visual inspection, the time spent exiting may be converted to compensable work time.