The FLSA and Employer-Controlled Time - Aiman-Smith & Marcy
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The FLSA and Employer-Controlled Time

In 2020, the California Supreme Court found that Apple was violating fair labor laws by requiring employees to wait for bag checks before leaving the premises. It was ruled that because the checks were primarily for Apple’s benefit and were met with disciplinary action when skipped, this bag checking legally constituted a timef in which employees were under Apple’s control and therefore had a right to minimum wage or greater.

However, the way the Supreme Court ruled over this issue opened the door to pay for many other mandatory off-the-clock activities being forced on non-exempt California workers. Are you or someone you know being subjected to work activities that are unpaid because – officially – they happen before or after your scheduled shift? If so, you may have a right to legal action and even back pay for mandatory hours that have gone uncompensated.

 

The FLSA and Employer-Controlled Time

According to the California Fair Labor Standards Act, employers are responsible for compensating their non-exempt (non-salaried) team members for any time when employees are under employer control. This standard was put into place to protect on-call shifts, irregular hours, and other abusive time-controlling policies that have been popular in the recent past.

Essentially, if an employer is preventing you from using your time for your own purposes, they are in control and therefore must pay for that time – whether or not you are performing profitable work for the company. The standards also relate to whether that time is spent on-premises and whether the off-the-clock activities primarily benefit the employee or employer.

 

Examples of Potentially Unpaid Mandatory Activities

Unpaid mandatory activities most often occur before or after clocking out and during clocked break times. These are activities that are functionally or even explicitly required by your employer but are considered off-the-clock activities to be done off of paid shift hours.

  • Changing into/out of uniform if arriving in street-clothes is required
  • Waiting in line for mandatory checks or activities
  • Bag checks for loss prevention
  • Taking specific required transportation
  • Cleaning workspaces between shifts
  • Overtime paperwork expectations

 

Optional or Mandatory?

Apple argued that bringing a bag was optional, so employees could choose whether to participate in the bag-check. Those who did not bring bags or personal items would not be checked. The lower court found that the check was optional, and therefore not mandatory. However, the new standards draw a line based on just how mandatory the task really is.

For example, many people must bring personal items for medical and unavoidable reasons. Some may even be required by their job description to carry a bag with both personal and professional supplies. Avoiding or failing to wait for a bag check was also met with disciplinary action, pushing the line over to a mandatory work activity.

 

Employer or Employee Benefit?

Cui bono? Who is the party that benefits from the activity? Apple argued that employees taking a parking lot shuttle were on their own time because the shuttle primarily benefited the employees, and was optional. However, the bag checks did not benefit the employees. The purpose of the bag checks was primarily and almost entirely forApple’s loss prevention program.

The privilege to bring a bag was not considered enough of a benefit to justify every bag-carrier to be subjected to a mandatory search and wait each time they left the premises.

 

In Control of Your Own Time

The California Supreme Court ruled that Apple was in control of employee time during bag check wait times and the checks themselves. Because the check happened both on -premises and disciplinary action was taken if employees did not wait the time for each check, it was deemed a work activity where employees were not in control of their time. 

Apple argued the grey line between personal and work time, like your daily commute or time on the parking shuttle. For this, you need only apply a practical personal-time test. Does the time belong to you or your employer?

The ‘Personal Time’ Test

Are you on the clock? There are two practical-example tests you can run mentally to determine if you should or should not be paid for your time spent on work premises or conducting work activities.

Could you, if off of work premises, be attending a child’s birthday party? Even remotely via Skype or FaceTime? Could you make that commitment and expect to be  available because you are off-the-clock? Could you spend that time on an energetic personal phone call as you could while on break or the commute home? If neither is true, your employer may still be ‘in control’ of your time.

 

Disciplinary Measures

The final test is whether employees can face consequences for not doing the activity. You may have noticed that this single element plays a role throughout the Supreme Court’s decision against Apple and the theme of the new time compensation standards.

The key element was that Apple disciplined employees who brought bags and did not submit to whatever time security checks required. Employees who must bring bags for personal or even professional reasons were therefore required. 

 

If you are being subjected to work activities without pay, you have rights to freedom, backpay, or both. Here at Aiman-Smith & Marcy, we are dedicated to protecting the rights of employees from the many little ways they can be chipped away or denied outright. Contact us today to consult on your unpaid work situation and discover how we can help.