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IN THE SUPREME COURT OF
CALIFORNIA
GEORGE HUERTA,
Plaintiff and Appellant,
v.
CSI ELECTRICAL CONTRACTORS,
Defendant and Respondent.
S275431
Ninth Circuit
21-16201
Northern District of California
5:18-cv-06761-BLF
March 25, 2024
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
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HUERTA v. CSI ELECTRICAL CONTRACTORS
S275431
Opinion of the Court by Liu, J.
Industrial Welfare Commission (IWC) wage order No. 16 -
2001 (Wage Order No. 16) governs wages, hours, and working
conditions in the construction, drilling, logging, and mining
industries. (Cal. Code Regs., tit. 8, § 11160.) It entitles certain
employees in these industries to at least minimum wage
compensation for “hours worked.” (Id., § 11160, subd. 4(B); see
id., § 11160, subd. 2(J).)
We granted a request from the United States Court of
Appeals for the Ninth Circuit to answer three questions about
Wage Order No. 16 and the scope of the term “hours worked.”
First: “Is time spent on an employer’s premises in a personal
vehicle and waiting to scan an identification badge, have
security guards peer into the vehicle, and then exit a Security
Gate compensable as ‘hours worked’ within the meaning of . . .
Wage Order No. 16?” (Huerta v. CSI Electrical Contractors, Inc.
(9th Cir. 2022) 39 F.4th 1176, 1177 (Huerta).) Second: “Is time
spent on the employer’s premises in a personal vehicle, driving
between the Security Gate and the employee parking lots, while
subject to certain rules from the employer, compensable as
‘hours worked’ or as ‘employer-mandated travel’ within the
meaning of . . . Wage Order No. 16?” (Ibid.) And third: “Is time
spent on the employer’s premises, when workers are prohibited
from leaving but not required to engage in employer-mandated
activities, compensable as ‘hours worked’ within the meaning of
. . . Wage Order No. 16, or under California Labor Code Section
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1194, when that time was designated as an unpaid ‘meal period’
under a qualifying collective bargaining agreement?” (Ibid.)
We answer these questions as follows: First, an
employee’s 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 is compensable as “hours worked” within the meaning of
Wage Order No. 16, section 2(J).
Second, the time that an employee spends traveling
between the Security Gate and the employee parking lots is
compensable as “employer-mandated travel” under Wage Order
No. 16, section 5(A) if the Security Gate was the first location
where the employee’s presence was required for an employment -
related reason other than the practical necessity of accessing the
worksite. Separately, this travel time is not compensable as
“hours worked” because an employer’s imposition of ordinary
workplace rules on employees during their drive to the worksite
in a personal vehicle does not create the requisite level of
employer control.
Third, when an employee is covered by a collective
bargaining agreement that complies with Labor Code section
512, subdivision (e) and Wage Order No. 16, section 10(E), and
provides the employee with an “unpaid meal period,” that time
is nonetheless compensable under the wage order as “hours
worked” if the employer prohibits the employee from leaving the
employer’s premises or a designated area during the meal period
and if this prohibition prevents the employee from engaging in
otherwise feasible personal activities. An employee may bring
an action under Labor Code section 1194 to enforce the wage
order and recover unpaid wages for that time.
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I.
The California Flats Solar Project (the Site) is a solar
power facility located on privately owned land in Monterey and
San Luis Obispo Counties. First Solar Electric, Inc. (First Solar)
owns the facility. A subcontractor hired George Huerta (Huerta)
and other workers to assist CSI Electrical Contractors (CSI), the
company providing “procurement, installation, construction,
and testing services” at the Site.
A designated road provided access between a guard shack
located at the Site’s perimeter and the employee parking lots. A
security gate (Security Gate) was located on that road several
miles from the guard shack; from the Security Gate, it would
take Huerta approximately 10 to 15 minutes to reach the
parking lots. Huerta underwent security checks at the Security
Gate and was told by CSI management that this gate was the
“first place” he had to be at the beginning of the workday.
In the morning, vehicles formed a long line outside the
Security Gate, where guards scanned each worker’s badge and
sometimes peered inside vehicles and truck beds. At the end of
the day, workers again formed a long line inside the Security
Gate, where the exit procedure took place. The exit procedure
could take up to a minute or more per vehicle and caused delays
of five to over 30 minutes. CSI told Huerta that security guards
had the right to search vehicles during the entry and exit
processes, and the guards visually inspected the bed of his truck
for stolen tools or endangered species. Huerta was not paid for
the time he spent waiting to pass through the Security Gate at
the beginning or end of the workday.
Because two endangered species were present near the
Site, the Department of Fish and Wildlife required First Solar
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to obtain an Incidental Take Permit (ITP) before work could
begin on the project. The ITP imposed a speed limit of 20 miles
per hour on the access road between the guard shack and the
parking lots, and restricted the roads that could be taken at the
Site. It also required a biologist to monitor the Site to minimize
disturbances to species’ habitats. As part of this monitoring, the
biologist each morning ensured that the road between the guard
shack and the parking lots was clear of endangered species
before anyone could enter the Site. On some occasions, this
clearing process added to the time Huerta spent waiting in line
to enter the worksite in the morning.
As First Solar’s subcontractor, CSI was required to abide
by the ITP and was required to ensure that its employees did as
well. After passing through the Security Gate each morning,
Huerta was subject to the rules imposed by the ITP in addition
to other rules governing his conduct. CSI required adherence to
speed limits between five and 20 miles per hour; restricted
travel to driving on the access road to reach the Site, thereby
prohibiting employees from driving on other roads near the Site
or walking or biking from the Security Gate to the parking lots;
and prohibited employees from honking their horns, playing
music that could be heard outside of their vehicles, or otherwise
disturbing local wildlife. Violation of these rules or other Site
rules could result in suspension or termination. Huerta was not
paid for the time he spent driving between the Security Gate
and the employee parking lots.
Huerta’s employment was governed by two collective
bargaining agreements (CBAs), which specified that the
standard workday included an unpaid 30-minute meal period.
CSI did not allow workers to leave the Site during the workday
and instructed workers to spend their meal periods at a
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designated area near their assigned worksite (Installation Site).
In accordance with the CBAs, Huerta was not paid for his meal
periods.
Huerta filed a wage and hour class action in the Superior
Court of Monterey County on behalf of himself and all others
similarly situated against CSI, seeking payment for unpaid
hours worked. The suit was removed to the United States
District Court for the Northern District of California. The
district court granted Huerta’s motion for class certification.
CSI then filed a motion for partial summary judgment on the
class claims Huerta raised in his first amended complaint; that
motion was granted by the district court. CSI filed a second
motion for partial summary judgment on the class claim that
survived the first motion for partial summary judgment. This
second motion was also granted. Huerta timely appealed the
orders granting CSI’s motions to the Ninth Circuit, which
certified to us the questions stated above.
II.
“The [IWC] was established more than a century ago ‘to
fix minimum wages, maximum hours of work, and standard
conditions of labor.’ ” (Frlekin v. Apple Inc. (2020) 8 Cal.5th
1038, 1045 (Frlekin).) To achieve this goal, the IWC formulated
a series of regulations known as wage orders. (See Hernandez
v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 136–137
(Hernandez).) These industry - and occupation-wide orders
specify “minimum requirements with respect to wages, hours,
and working conditions.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1026 (Brinker).)
Wage Order No. 16 applies to employees like Huerta who
work in certain “on-site occupations” in the construction,
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drilling, logging, and mining industries. (Cal. Code Regs., tit. 8,
§ 11160, subd. 1.) Section 4 of Wage Order No. 16 sets a
minimum wage at which employees will be compensated for
“hours worked.” (Cal. Code Regs., tit. 8, § 11160, subd. 4.)
“ ‘Hours worked’ ” is defined in Wage Order No. 16, section 2(J)
as “the time during which an employee is subject to the control
of an employer, and includes all the time the employee is
suffered or permitted to work, whether or not required to do so.”
(Cal. Code Regs., tit. 8, § 11160, subd. 2(J); see Morillion v.
Royal Packing Co. (2000) 22 Cal.4th 575, 581 (Morillion) [“All
15” of the wage orders in effect at the time “contain the same
definition of ‘hours worked’ . . . , except for IWC wage order
Nos. 4–89 and 5–89, which include additional language.”].)
We have explained that the two clauses of the “hours
worked” definition — the control clause and the suffered or
permitted to work clause — “establish ‘independent factors,
each of which defines whether certain time spent is compensable
as “hours worked.” ’ ” (Frlekin, supra, 8 Cal.5th at p. 1046,
quoting Morillion, supra, 22 Cal.4th at p. 582.) “Thus, an
employee who is subject to the control of an employer does not
have to be working during that time to be compensated under
the applicable wage order. ([Morillion, at p. 582].) Likewise, an
employee who is suffered or permitted to work does not have to
be under the employer’s control to be compensated, provided the
employer has or should have knowledge of the employee’s work.”
(Frlekin, at p. 1046, italics omitted.)
A.
The Ninth Circuit asks whether time an employee spends
on his employer’s premises waiting in his personal vehicle to
scan an identification badge and have a security guard peer into
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his vehicle before exiting a Security Gate is compensable as
“hours worked.” We hold that it is.
In Frlekin, the Ninth Circuit asked us to resolve a similar
question: whether time that Apple employees spent on Apple’s
premises “waiting for, and undergoing, required exit searches of
packages, bags, or personal technology devices voluntarily
brought to work purely for personal convenience by employees”
is compensable as “ ‘hours worked.’ ” (Frlekin, supra, 8 Cal.5th
at p. 1042.) In answering yes, we conducted a “strictly textual
analysis” of the control clause, which led us to conclude that
“Apple employees are clearly under Apple’s control while
awaiting, and during, the exit searches.” (Id. at p. 1047; see
ibid., citing Bono Enterprises, Inc. v. Bradshaw (1995) 32
Cal.App.4th 968, 974–975 (Bono), disapproved on other grounds
in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14
Cal.4th 557, 574.) Apple’s control of its employees during the
time they spent “awaiting, and during, the exit searches” was
evidenced by Apple’s requirement that “its employees
. . . comply with the bag-search policy under threat of discipline,
up to and including termination”; its confinement of employees
to the premises while they waited to undergo an exit search; and
its requirement that employees “perform specific and supervised
tasks while awaiting and during the search,” including “locating
a manager or security guard and waiting for that person to
become available, unzipping and opening all bags and packages,
moving around items within a bag or package, removing any
personal Apple technology devices for inspection, and providing
a personal technology card for device verification.” (Frlekin, at
p. 1047.)
Apple argued that the exit searches were not compensable
because Apple employees could avoid them “by choosing not to
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bring a bag, package, or personal Apple technology device to
work.” (Frlekin, supra, 8 Cal.5th at p. 1049.) We rejected this
argument along with Apple’s contention that the employee’s
activity, to be compensable under the control clause, must be
“ ‘required’ and ‘unavoidable.’ ” (Id. at p. 1048.) “Redefining the
control clause to cover only unavoidably required employer -
controlled activities would limit the scope of compensable
activities, resulting in a narrow interpretation at odds with the
wage order’s fundamental purpose of protecting and benefitting
employees.” (Ibid.) We reaffirmed “that ‘[t]he level of the
employer’s control over its employees, rather than the mere fact
that the employer requires the employees’ activity, is
determinative’ concerning whether an activity is compensable
under the ‘hours worked’ control clause.” (Id. at p. 1056, quoting
Morillion, supra, 22 Cal.4th at p. 587.) Nonetheless, an
activity’s mandatory nature “remains probative in determining
whether an employee is subject to the employer’s control,” along
with other factors such as the location of the activity, the degree
of the employer’s control, whether the activity primarily benefits
the employee or employer, and whether the activity is enforced
through disciplinary measures. (Frlekin, at p. 1056.)
California courts have not addressed whether “time spent
on the employer’s premises, in a personal vehicle, waiting for
and undergoing an exit process” that includes a vehicle
inspection causing delay is compensable under the control
clause. (Huerta, supra, 39 F.4th at p. 1180.) This case, like
Frlekin, involves time spent on the employer’s premises by
employees awaiting an exit security procedure that included a
search. The fact that an employee awaits and undergoes the
exit process while in his personal vehicle does not necessarily
transform that time into commuting time, nor does it foreclose
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an employer’s ability to exert control over its employee. An
employee in his personal vehicle may be subject to his
employer’s control within the meaning of the wage order if
sufficient indicia of control are present. The inquiry we
undertook in Frlekin applies equally here.
We conclude that under the indicia of employer control
identified in Frlekin, Huerta was subject to CSI’s control “while
awaiting, and during,” the exit security procedure even though
he was in his personal vehicle during that time. (Frlekin, supra,
8 Cal.5th at p. 1047.) Like the employees in Frlekin, Huerta was
required to wait for and undergo the exit security procedure
before leaving the Site. Whereas the bag search in Frlekin was
practically mandatory because employees could only avoid it by
not bringing personal technology items to work, compliance with
CSI’s exit procedure was strictly required for every employee.
(Id. at pp. 1054, 1056 [mandatory nature of activity is
probative].) Further, like the employees in Frlekin, Huerta
remained confined to the employer’s premises until he
completed the exit procedure; the procedure was thus an “onsite
employer-controlled activit[y].” (Id. at p. 1056; see id. at p. 1051
[an employer’s level of control is “greater in the context of an
onsite search”]; Mendiola v. CPS Security Solutions, Inc. (2015)
60 Cal.4th 833, 840 (Mendiola) [“ ‘ “[W]hen an employer directs,
commands or restrains an employee from leaving the work place
. . . and thus prevents the employee from using the time
effectively for his or her own purposes, that employee remains
subject to the employer’s control.” ’ ”].)
In addition, Huerta was required to perform “specific and
supervised tasks” as part of the exit procedure: he had to drive
his vehicle to the Security Gate, wait in his vehicle until it was
his turn to undergo the security check, roll down his window and
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present his security identification badge to the guard, and
submit his vehicle to visual inspection and possible physical
search. (Frlekin, supra, 8 Cal.5th, at p. 1047; see id. at p. 1051
[describing the “specific actions and movements” required of
employees to comply with Apple’s bag search policy].) Finally,
CSI’s requirement that Huerta undergo the exit procedure was
primarily in service of its own interests. (See Frlekin, supra, 8
Cal.5th at pp. 1052–1053.) CSI was bound by its contract with
First Solar to comply with various health, safety, and
environmental protection protocols, and it took an active role in
enforcing those protocols, including through the exit procedure.
In addition to ensuring that only badged workers entered and
exited the Site each day, CSI also had an interest in preventing
the theft of tools and endangered species from the premises. CSI
therefore had a significant interest in ensuring compliance with
its exit procedure.
CSI contends that unlike the security search in Frlekin,
the exit procedure here is “strictly for the purposes of ingress
and egress.” The procedure, CSI says, is akin to “stopping at a
gate at a parking garage to exit, which also requires the mere
lowering of the window, reaching out of an arm, and scanning a
card in order to cause the gate to rise,” “swiping a card or using
a key to unlock a door to exit the employer’s building,” or
“flashing an identification card to bypass a security line.”
This description does not capture the scope of the exit
procedure or CSI’s interest in it. As detailed in the Site’s
security plan, the procedure not only requires employees to
present their badges for inspection and scanning; it also involves
inspection of “back seats, back of trucks, and periodically . . .
trunks of cars” by a security guard. The procedure requires the
employment of personnel specifically tasked with “consistently
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inspect[ing] any vehicle that has entered the project site upon
exiting” to match the badge or badges presented by the driver to
the individual or individuals in the vehicle and to check for
stolen items or endangered species. The fact that security
workers were employed to operate the Security Gate and
conduct inspections — in lieu of security cameras or an
automated gate that would open after “the mere lowering of the
window, reaching out of an arm, and scanning a card” — is
evidence that the exit process involved more than facilitation of
ingress and egress.
To be sure, the CSI exit protocol is not as intrusive as the
search in Frlekin. But the fact that the procedure itself could
take up to a minute or more per vehicle suggests that CSI’s
inspections extended beyond the time necessary to simply scan
a badge. It is also evidence that the procedure prolonged the
time required for workers to exit the Site beyond what would
result from ordinary traffic congestion at the end of the
workday. We note that California’s wage and hour statutes do
not incorporate the federal de minimis doctrine and do not
“excuse the payment of wages for small amounts of otherwise
compensable time upon a showing that the bits of time are
administratively difficult to record.” (Troester v. Starbucks
Corp. (2018) 5 Cal.5th 829, 835; id. at p. 847 [“a few extra
minutes of work each day can add up”].)
We thus hold 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 “hours
worked” within the meaning of Wage Order No. 16.
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B.
Next: “Is time spent on the employer’s premises in a
personal vehicle, driving between the Security Gate and the
employee parking lots, while subject to certain rules from the
employer, compensable as ‘hours worked’ or as ‘employer -
mandated travel’ . . . ?” (Huerta, supra, 39 F.4th at p. 1177.) We
hold that the time may be compensable as “employer-mandated
travel” but is not compensable as “hours worked.”
1.
In determining whether this drive time is compensable as
“employer-mandated travel” under Wage Order No. 16, section
5(A), we apply “the usual rules of statutory interpretation.”
(Brinker, supra, 53 Cal.4th at p. 1027.) Because IWC wage
orders, like the provisions of the Labor Code, “ ‘have long been
viewed as part of the remedial worker protection framework’ ”
(Brinker, at p. 1027), we interpret these orders “so as to promote
employee protection” (Mendiola, supra, 60 Cal.4th at p. 840; see
Brinker, at pp. 1026–1027) and to benefit employees (see
Frlekin, supra, 8 Cal.5th at p. 1045).
Wage Order No. 16, section 5(A) 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 . . . .” (Cal. Code Regs., tit. 8,
§ 11160, subd. 5(A).) Huerta urges a literal construction of the
phrase “the first location where the employee’s presence is
required” and contends that because CSI management told him
that the Security Gate was the “first place” he had to be at the
beginning of the workday, his drive from the Security Gate to
the employee parking lots is compensable as “employer-
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mandated travel.” Huerta also relies on declarations from other
employees on this point.
In response, CSI contends that a location does not qualify
as “the first location where the employee’s presence is required
by the employer” within the meaning of the wage order “just
because an employer’s premises can be accessed only from one
point, and the employee is ‘required’ to stop there before starting
work.” If this were the case, CSI argues, employees would be
entitled to compensation under Wage Order No. 16, section 5(A)
for any travel occurring after passing through “any gate, front
door, or other entrance.” CSI urges us to interpret the phrase to
refer to “the very common situation where employees must
gather at a certain location, and then are required to travel
again to another location.”
As the Ninth Circuit explained, “[i]t is true that there was
at least a de facto required arrival time to be at the [Security]
Gate for entry and exit: Workers had to sign in at the parking
lots before their shift started; there was a strictly enforced speed
limit on the only road between the Gate and parking lot; CSI
knew how long the drive took; the Gate did not open until a
certain time each morning; and CSI ‘gave workers a scheduled
time when [they] could enter’ the site, which sometimes was
delayed; which taken together indicates CSI and the workers
knew the Gate arrival time was de facto required for workers to
begin or end their shifts on time. [¶] But de facto arrival times
do not always signify that the drive was employer-mandated,
compensable travel. Standard commutes need not be
compensated in California, . . . during which there are always
de facto required arrival times for locations unrelated to the
employer.” (Huerta, supra, 39 F.4th at p. 1184, citation
omitted.)
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The Statement as to the Basis for Wage Order No. 16
explains that section 5(A) was adopted with “compromise
language proposed by employee and employer representatives.”
(IWC, Statement as to the Basis for Wage Order No. 16
Regarding Certain On-site Occupations in the Construction,
Drilling, Mining, and Logging Industries (Jan. 2001) p. 10
(Statement as to the Basis for Wage Order No. 16).) In
describing section 5(A), the statement reproduces the section’s
text and then cites Morillion. (Statement as to the Basis for
Wage Order No. 16, supra, at p. 10.) In Morillion, we considered
whether time spent by agricultural employees traveling to and
from the worksite on employer-provided buses was compensable
as “hours worked.” (Morillion, supra, 22 Cal.4th at p. 578.) The
employees were required to meet at a designated departure
point at a certain time to catch a bus to the fields where they
worked. (Id. at p. 579.) They sought compensation for time “(1)
assembling at the [bus’s] departure points; (2) riding the bus to
the fields; (3) waiting for the bus at the end of the day; and (4)
riding the bus back to the departure points.” (Ibid.) We referred
to this as “compulsory travel time,” meaning time spent
traveling “to and from a work site that an employer controls and
requires.” (Id. at p. 579 & fn. 2.) We concluded that this
compulsory travel time was compensable as “hours worked”
under the control clause because the employer “ ‘ “direct[ed]” ’
and ‘ “ command[ed]” ’ ” the plaintiffs to “travel between the
designated departure points and the fields” on the employer’s
buses. (Id. at p. 587.) We distinguished such travel time from
“an ordinary commute from home to work and back that
employees take on their own,” which is not compensable. (Id. at
p. 580, fn. 2.)
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Morillion did not assess whether the employees’ time was
compensable as “employer-mandated travel,” a term unique to
Wage Order No. 16. And in adopting Wage Order No. 16,
section 5(A), the IWC did not tether the term “employer -
mandated travel” to the employer’s control over that employee
during the travel time, as it did for the term “hours worked.”
(Cal. Code Regs., tit. 8, § 11160, subd. 2(J).) Rather, the IWC
elected to make compensation for “employer-mandated travel”
turn on whether the employer mandates travel to a second
location “after the first location where the employee’s presence
is required.” (Id., § 11160, subd. 5(A).)
We reject CSI’s interpretation of “first location” as unduly
restrictive. Although the IWC Statement as to the Basis for
Wage Order No. 16 cites Morillion, there is no indication that
the IWC intended to limit the applicability of Wage Order No.
16, section 5(A) to a scenario where employees are required to
gather before traveling elsewhere. In addition, for time to be
compensable as “employer-mandated travel,” an employee need
not be subject to the employer’s control during the travel. The
travel need only have occurred at the direction and command of
the employer after the employee’s arrival at the “first location”
where the employer required the employee’s presence. This
much is clear from the text of section 5(A).
At the same time, we agree with CSI that a location does
not qualify as “the first location where the employee’s presence
is required by the employer” within the meaning of the wage
order “just because an employer’s premises can be accessed only
from one point, and the employee is ‘required’ to stop there
before starting work.” In circumstances where an employee
must use a single entrance to the employer’s premises, it could
be said that the employee’s “presence” is, as a matter of practical
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necessity, “required by the employer” at that entrance before
entering work. (Cal. Code Regs., tit. 8, § 11160, subd. 5(A).) But
this literalism does not align with the notion of being required
by the employer — purposefully, not just circumstantially — to
report to a specific location before subsequent employer -
mandated travel. What the Ninth Circuit called “de facto arrival
times” (Huerta, supra, 39 F.4th at p. 1184) do not demarcate
“the first location where the employee’s presence is required by
the employer” under Wage Order No. 16, section 5(A). Were it
otherwise, our reading of the wage order would be at odds with
the rule that ordinary commuting, for which “there are always
de facto required arrival times for locations unrelated to the
employer” (Huerta, at p. 1184), “is not generally compensable”
(Frlekin, supra, 8 Cal.5th at p. 1051).
We hold that an employee’s presence at a location is
“required by the employer” within the meaning of the wage
order when it is required for an employment-related reason
other than the practical necessity of reaching the worksite.
Examples include situations where an employee’s presence at
an initial location is required to pick up work supplies, receive
work orders or other directives, or perform work before traveling
to a second jobsite. (See Griffin v. Sachs Electric Co. (N.D.Cal.
2019) 390 F.Supp.3d 1070, 1097, affd. mem. (9th Cir. 2020)
831 Fed.Appx. 270 [citing Burnside v. Kiewit Pacific Corp. (9th
Cir. 2007) 491 F.3d 1053, 1056, 1070, and reasoning that
requiring an employee to be present at a designated site to
receive instructions and retrieve equipment are “indicative” of
employer requirements that would render travel time
compensable under Wage Order No. 16, § 5(A)].)
This reading is supported by material presented to the
IWC during the public hearings that informed the adoption of
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Wage Order No. 16. (See Murphy v. Kenneth Cole Productions,
Inc. (2007) 40 Cal.4th 1094, 1109–1110 [favorably discussing
reliance on IWC hearing statements].) A representative of the
State Building and Construction Trades Council explained that
compensating employees for “employer-mandated travel” as
provided in Wage Order No. 16, section 5(A) is “extremely
important in the construction industry” because employees may
be told to report to work at a particular job site, work at that site
for a few hours, and then be asked to report to a second job site.
(IWC
public
hg.
transcript
(Aug.
17,
2000)
<https://
www.dir.ca.gov/IWC/Pubmtg08172000.htm> [as of March 25,
2024]; this citation is archived by year, docket number, and case
name at <http://www.courts.ca.gov/38324.htm>.) Such a
scenario more closely resembles the circumstances in Morillion,
where the employees were required to arrive at designated
departure points at certain times to travel to their worksites,
than the “de facto arrival times” (Huerta, supra, 39 F.4th at
p. 1184) that arise when employees out of practical necessity
must arrive at certain locations in order to reach their worksite.
Nothing in the IWC’s public hearings suggests that section 5(A)
was intended to apply to the latter scenario.
On the record before us, we express no view on whether
the Security Gate was “the first location” where Huerta’s
presence was required by CSI such that his travel time between
the Security Gate and the employee parking lots is compensable.
On one hand, declarations by Huerta and other employees
indicate that CSI told them the Security Gate was “the first
place” they had to be at the beginning of the workday. It appears
undisputed that workers were not allowed to enter the access
road between the Security Gate and the employee parking lots
until a biologist cleared the road each day and security guards
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scanned their identification badges, which Huerta says caused
five - to 20-minute delays entering the Security Gate in the
morning. This could support the view that CSI required
employees’ presence at the Security Gate for a purpose other
than accessing the worksite, i.e., ensuring compliance with CSI’s
security and environmental protection protocols. On the other
hand, CSI offered evidence contradicting these allegations,
including declarations from workers stating that CSI did not
instruct them that the Security Gate was the first location that
their presence was required and that they never observed delays
in the morning. CSI also observes, and it appears undisputed,
that passage through the Security Gate is practically necessary
in order to reach the employee parking lots; there is no other
access road.
In sum, for travel time to be compensable under Wage
Order No. 16, section 5(A), there must be evidence not only that
the employer required the employee’s presence at an initial
location before mandating travel to a subsequent location, but
also that the employee’s presence was required for an
employment-related reason other than accessing the worksite.
An employee’s declaration that the employer required him to be
present at an entrance gate to access the worksite is insufficient
by itself to meet this standard. Here, whether the Security Gate
is “the first location” within the meaning of the wage order turns
on whether Huerta’s presence there was required by CSI for an
employment-related reason other than the practical necessity of
accessing the worksite, as well as the nature of any such reason.
Relevant considerations include, but are not limited to, what
purpose is served by the employee’s presence at the location,
what activities occur there, and how much time is spent there.
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2.
We next consider “whether driving on an employer’s
premises, in a personal vehicle, before or after a shift, while
subjected to an employer’s rules, is compensable as ‘hours
worked’ ” (Huerta, supra, 39 F.4th at p. 1183), first under the
control clause and then under the suffer or permit to work clause
(Cal. Code Regs., tit. 8, § 11160, subd. 2(J)).
CSI relies on the high court’s interpretation of the Fair
Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq.) in
Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680 and on
the Portal-to-Portal Act of 1947 (29 U.S.C. § 251 et seq.) to argue
that time spent traveling on an employer’s premises before or
after work is not generally compensable. Congress passed the
FLSA in 1938. (Pub.L. No. 75-718 (June 25, 1938) 52 Stat. 1060;
see also 29 U.S.C. § 201 et seq.) Among other provisions, the act
set a federal minimum wage and rules for overtime
compensation, but it did not define the statutory terms “work”
or “workweek.” (See 29 U.S.C. §§ 203 [definitions], 206
[minimum wage], 207 [maximum hours].) In its early cases
interpreting the act, the high court construed those terms
broadly. It defined “work” to mean “physical or mental exertion
(whether burdensome or not) controlled or required by the
employer and pursued necessarily and primarily for the benefit
of the employer and his business.” (Tennessee Coal Co. v.
Muscoda Local (1944) 321 U.S. 590, 598.) And it defined
“workweek” to include “all time during which an employee is
necessarily required to be on the employer’s premises, on duty
or at a prescribed workplace, the time spent in these activities
must be accorded appropriate compensation.” (Anderson, supra,
328 U.S. at pp. 690–691.) “Applying these expansive definitions,
the Court found compensable the time spent traveling between
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mine portals and underground work areas, Tennessee Coal,
[supra, 321 U.S. at p. 598], and the time spent walking from
timeclocks to workbenches, Anderson, [supra, 328 U.S. at
pp. 691–692].” (Integrity Staffing Solutions, Inc. v. Busk (2014)
574 U.S. 27, 31 (Integrity Staffing).)
These decisions “provoked a flood of litigation” (Integrity
Staffing, supra, 574 U.S. at p. 31; id. at pp. 32–33) and led
Congress to pass the Portal-to-Portal Act of 1947, which
amended the FLSA. (Pub.L. No. 80-49 (May 14, 1947) 61 Stat.
84; see also 29 U.S.C. § 254.) As relevant here, the act exempted
employers from liability for wage claims based on “ ‘(1) walking,
riding, or traveling to and from the actual place of performance
of the principal activity or activities which such employee is
employed to perform, and [¶] (2) activities which are preliminary
to or postliminary to said principal activity or activities . . . .’ ”
(Integrity Staffing, at p. 32.)
“In response [to the Portal-to-Portal Act], the IWC,
exercising its authority to provide employees with greater
protection than federal law affords [citations], revised its wage
orders from 1947 forward . . . .” (Martinez v. Combs (2010) 49
Cal.4th 35, 60 (Martinez).) Before this revision, “California’s
definition of ‘hours worked’ was entitled ‘Hours Employed’ in
most wage orders and was defined differently.” (Morillion,
supra, 22 Cal.4th at p. 591.) “For example, former IWC wage
order No. 1 N.S. provided as follows: ‘ “Hours Employed” means
all time during which: [¶] (1) An employee is required to be on
the employer’s premises, or to be on duty, or to be at a prescribed
work place . . . .” (Id. at p. 591, fn. 7, italics added.) The 1947
revision adopted the term “hours worked” and defined it to mean
“ ‘the time during which an employee is subject to the control of
an employer, . . . includ[ing] all the time the employee is
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suffered or permitted to work, whether or not required to do
so.’ ” (Martinez, at p. 60, italics omitted.)
CSI contends that “California’s removal of ‘required to be
on the employer’s premises’ from the definition of ‘hours
employed’ just after Anderson and just after Congress [enacted
the Portal-to-Portal Act] is substantial evidence that California,
like Congress, also rejected Anderson’s holding that traveling on
the employer’s premises before and after work should be
compensated.” But we rejected a nearly identical argument in
Morillion. There we considered the contention that “the 1947
amendment [to the wage orders], which eliminated specific
language regarding waiting time and time when employees are
required to be on their employer’s premises and on duty (in
addition to ‘time when an employee is required or instructed to
travel on the employer’s business after the beginning and before
the end of her work day’; [citation]), covered preliminary and
postliminary activities, including travel time, which are not
compensable under the Portal-to-Portal Act.” (Morillion, supra,
22 Cal.4th at p. 591.) We declined to infer that “the IWC revised
the definition of ‘hours worked’ to correspond to the federal
standard” (ibid.), which “expressly eliminates substantial
protections to employees” (id. at p. 592). “In addition to
eliminating the cited language, the IWC added the phrase ‘the
time during which an employee is subject to the control of an
employer’ to the definition of ‘hours worked.’ ‘Control’ may
encompass activities described by the eliminated language . . . .”
(Id. at pp. 591–592.) We observed that this “departure from the
federal authority is entirely consistent with the recognized
principle that state law may provide employees greater
protection than the FLSA.” (Id. at p. 592.)
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Yet we had no occasion in Morillion, which addressed
“compulsory travel time” on an employer-provided bus
(Morillion, supra, 22 Cal.4th at pp. 587–588), to consider what
circumstances would make travel time on work premises in an
employee’s own vehicle compensable as “hours worked” under
the control test. Huerta says he is entitled to compensation for
the time he spent driving between the Security Gate and the
employee parking lots because he was subject to many rules
imposed by CSI during this time and mandatory entrance and
exit security procedures on either end. (We have considered the
exit security procedure separately in response to the first
certified question. (Ante, at pp. 6–12.))
The general Site rules that Huerta says CSI imposed
during his drive on the access road include safety and personal
protective equipment rules; anti-discrimination and anti -
harassment rules; environmental rules; alcohol and drug
policies; rules related to being subject to searches for alcohol,
drugs, and other things; and rules prohibiting smoking,
practical jokes, horseplay, gambling, photography, and playing
loud music. Additional “rules of the road” required Huerta to
abide by signs posted on the access road, adhere to speed limits,
and drive only on the road connecting the Security Gate and the
parking lots. Other rules prohibited Huerta from passing other
drivers on the access road, stopping on the access road except in
emergencies, smoking or using ear buds or ear pods while
driving, or driving in a manner that would generate dust or
otherwise disturb the local wildlife. Violation of these rules
could result in suspension or termination.
Although these rules curbed Huerta’s freedom of action
while traveling between the Security Gate and the parking lots,
we hold that they do not amount to a level of control sufficient
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to render the travel time compensable as “hours worked.” The
rules at issue are designed to ensure safe, lawful, and orderly
conduct while traveling on the employer’s premises. Such rules
are necessary and appropriate in virtually every workplace. A
warehouse employee who drives onto the employer’s grounds
may be subject to speed limits, parking rules, and restrictions
on noise, smoking, littering, paths of travel, or other conduct.
The same is true of employees of amusement parks, universities,
hospitals, retail stores, and other businesses with sizable
grounds. Huerta cites no authority for a rule that an employee
is entitled to compensation whenever he is not permitted to
drive wherever he wants, to go however fast as he wants, or to
stop wherever he wants on the employer’s premises.
In addition, the position Huerta urges does not appear
limited to driving time. If the rules that apply during Huerta’s
drive satisfy the control test, then so would workplace rules that
curb an employee’s freedom while walking or otherwise
traveling on the employer’s premises to and from the employee’s
worksite at the beginning or end of the day. A maintenance
worker who skateboards to his office building may be prohibited
from skateboarding through the lobby to the elevator. A
department store clerk may be prohibited from chewing gum or
talking on her cell phone while walking through the store before
or after her shift. And employees of all kinds are subject to
prohibitions on workplace harassment and discrimination while
on an employer’s premises.
We are unable to discern any meaningful distinction
between such rules and the workplace rules alleged by Huerta
to constitute employer control here. CSI appears correct that
Huerta’s position “has no limiting principle” and would invite
claims of unpaid wages from “any employee who uses a time
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clock” because “[e]mployees always spend some amount of time
navigating towards a time clock or their workspace before a shift
and away from the same area after a shift, in their cars on
employer property or walking across employer hallways or
sidewalks.” Because workplaces are regulated environments,
adopting Huerta’s position would mean that whenever an
employee is traveling on an employer’s premises, including
before or after a work shift, the time is compensable as “hours
worked.” We are not aware of any authority that has construed
employer control so expansively. Even though “ ‘[c]ontrol’ may
encompass activities described by the eliminated language”
covering preliminary and postliminary activities in pre-1947
wage orders (Morillion, supra, 22 Cal.4th at p. 592), we decline
to reduce the control test to a categorical rule of compensability
for any time that an employee spends traveling on work
premises. Rules designed to ensure safe, lawful, and orderly
conduct while traveling on an employer’s premises, such as the
general Site rules and the “rules of the road” at issue here, do
not impose a level of control that renders the time compensable.
Huerta says Morillion dictates a contrary result. But the
fact that the employer in Morillion required its employees to use
its buses to reach the workplace and “prohibited employees from
using their own transportation” (Morillion, supra, 22 Cal.4th at
p. 579) was notable because “[i]n contrast to Royal’s employees,
employees who commute to work on their own decide when to
leave, which route to take to work, and which mode of
transportation to use. By commuting on their own, employees
may choose and may be able to run errands before work and to
leave from work early for personal appointments.” (Id. at
pp. 586–587; see id. at p. 586 [“[D]uring the bus ride plaintiffs
could not drop off their children at school, stop for breakfast
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before work, or run other errands requiring the use of a car.”];
Frlekin, supra, 8 Cal.5th at p. 1051 [“Commuting is an activity
that employees ordinarily initiate on their own . . . .”].)
The issue here does not concern Huerta’s commute to the
workplace; it is whether the rules that apply during Huerta’s
drive on the workplace premises make the driving time
compensable. Huerta argues the control test is met because
“while on the Access Road, [workers] could not use the time
effectively for their own personal purposes.” But quite apart
from CSI’s rules, once Huerta drove onto the Site, he did not
have the same options for running errands, dropping off
children, or attending to personal appointments that we found
relevant for evaluating control in Morillion. Huerta’s inability
to use the drive time for his personal purposes is no different
from the inability of an employee with a 30-minute commute to
use the 30 minutes required for getting to and from work —
independent of whatever additional time for personal errands
might be appended to the 30-minute commute — for his or her
personal purposes. (See Frlekin, supra, 8 Cal.5th at p. 1051
[“Commuting . . . is not generally compensable.”].) And if the
general Site rules were sufficient to establish control, then the
control test would boil down to a categorical rule of
compensability for any time an employee spends on the
employer’s premises, including the time it may take to find a
parking space at the start of the work day, to walk between a
parking lot and worksite at the beginning or end of the day, or
to wait for an elevator in a tall building. Unlike the mandatory
bus ride to the worksite in Morillion, and unlike the exit security
procedure here (ante, at pp. 9–14) and in Frlekin, the rules that
apply during Huerta’s drive between the Security Gate and the
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employee parking lots do not impose a level of control that
renders the driving time compensable as “hours worked.”
Huerta alternatively contends that the time he spent
driving between the Security Gate and the employee parking
lots is compensable as “hours worked” because he was “suffered
or permitted to work” during that time. (Cal. Code Regs., tit. 8,
§ 11160, subd. 2(J).) This phrase encompasses “time an
employee is working but is not subject to an employer’s control,”
such as “unauthorized overtime, which the employer has not
requested or required,” or when an employee “ ‘voluntarily
continue[s] to work at the end of a shift.’ ” (Morillion, supra, 22
Cal.4th at p. 585.) Courts have explained that “ ‘the standard of
“suffered or permitted to work” is met when an employee is
engaged in certain tasks or exertion that a manager would
recognize as work.’ ” (Hernandez, supra, 29 Cal.App.5th at
p. 142, quoting Taylor v. Cox Communs. Cal., LLC (C.D.Cal.
2017) 283 F.Supp.3d 881, 890.) Huerta says the time he spent
driving between the Security Gate and the employee parking
lots required him to exert himself mentally and physically, i.e.,
“work” for the benefit of his employer. But this expansive
construction does not align with the definition of “work” in this
context as “ ‘tasks or exertion that a manager would recognize
as work.’ ” (Hernandez, at p. 142.) Because an employee’s drive
on the access road is not a form of exertion that a manager would
recognize as work on the Site, the drive time is not compensable
under the suffer or permit clause.
C.
We now consider whether “time spent on the employer’s
premises, when workers are prohibited from leaving but not
required to engage in employer-mandated activities, [is]
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compensable as ‘hours worked’ within the meaning of . . . Wage
Order No. 16, or under California Labor Code Section 1194,
when that time was designated as an unpaid ‘meal period’ under
a qualifying collective bargaining agreement.” (Huerta, supra,
39 F.4th at p. 1177.)
Labor Code section 512, subdivision (a) and Wage Order
No. 16, section 10(A) require employers to provide their
employees 30-minute meal periods, subject to certain
limitations and exemptions. As relevant here, Labor Code
section 512, subdivision (a) requires that employees working for
periods of more than five hours per day receive a meal period of
not less than 30 minutes, unless the employer and employee
waive the meal period in certain limited circumstances. The
subdivision does not apply to “employee[s] employed in a
construction occupation” (Lab. Code, § 512, subd. (f)(1); see id.,
§ 512, subd. (g)(2) [defining “construction occupation”]) if “(1)
[t]he employee is covered by a valid collective bargaining
agreement” and “(2) [t]he valid collective bargaining agreement
expressly provides for the wages, hours of work, and working
conditions of employees, and expressly provides for meal periods
for those employees, final and binding arbitration of disputes
concerning application of its meal period provisions, premium
wage rates for all overtime hours worked, and a regular hourly
rate of pay of not less than 30 percent more than the state
minimum wage rate” (id., § 512, subd. (e)(1), (2)).
Wage Order No. 16, sections 10(A) and 10(B) generally
mirror Labor Code section 512, subdivision (a). (See Cal. Code
Regs., tit. 8, § 11160, subd. 10(A), (B).) Further, like Labor Code
section 512, subdivision (e), Wage Order No. 16, section 10(E)
provides that “Subsections A, B, and D of Section 10, Meal
Periods, shall not apply to any employee covered by a valid
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collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of
the employees, and if the agreement provides premium wage
rates for all overtime hours worked and a regular hourly rate of
pay for those employees of not less than 30 percent more than
the state minimum wage.” Unlike the exemption to the meal
period requirements in Labor Code section 512, subdivision (e),
the exemption under Wage Order No. 16, section 10(E) does not
require the requisite collective bargaining agreement to
“expressly provide[] for meal periods for . . . employees, [or
provide for] final and binding arbitration of disputes concerning
application of its meal period provisions.” (Lab. Code, § 512,
subd. (e)(2).)
The parties do not contest the validity of the CBAs, nor do
they dispute that the CBAs contain the requisite provisions to
exempt CSI from the meal period requirements set out in Labor
Code section 512, subdivision (a) and Wage Order No. 16,
section 10(A). (See Huerta, supra, 39 F.4th at pp. 1185–1186
[concluding that the CBAs properly exempted CSI from meal
period requirements].) They dispute whether a meal period,
when provided, may be unpaid if the workers remain subject to
the employer’s control.
Huerta argues that because he was prohibited from
leaving the Site and subject to CSI’s control during his meal
period, that time is compensable as “hours worked.” CSI
contends that Huerta is not entitled to compensation for unpaid
meal periods because the CBAs also exempted CSI from
compliance with Wage Order No. 16, section 10(D). (See Cal.
Code Regs., tit. 8, § 11160, subd. 10(E).) Wage Order No. 16,
section 10(D) provides: “Unless the employee is relieved of all
duty during a thirty (30) minute meal period, the meal period
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shall be considered an ‘on duty’ meal period and counted as time
worked. An ‘on duty’ meal period shall be permitted only when
the nature of the work prevents the employee from being
relieved of all duty and when, by written agreement between the
parties, an on-the-job paid meal period is agreed to and complies
with Labor Code § 512.” (Cal. Code Regs., tit. 8, § 11160,
subd. 10(D).) CSI urges us to read the exemption from section
10(D)’s paid meal period requirement to mean that under a
qualifying CBA, workers may be permitted to bargain away
their right to a minimum wage for an on-duty meal period even
though it is “time worked.”
We reject CSI’s proposed construction of the Wage Order
No. 16, section 10(D) exemption. To read the wage order as
authorizing employees and employers to bargain away
employees’ right to be paid for an on-duty meal period, i.e., “time
worked,” would run afoul of the well-established principle that
the right to a minimum wage under Labor Code section 1194,
subdivision (a) is unwaivable. (Gutierrez v. Brand Energy
Services of California, Inc. (2020) 50 Cal.App.5th 786, 799–800
(Gutierrez).) Instead, we interpret Wage Order No. 16, section
10(D) and (E) to permit employees to bargain for a voluntary
paid on-duty meal period. In other words, an exemption from
section 10(D) permits workers to negotiate a contract for on-duty
meal periods even when “the nature of the work” does not
“prevent[] the employee from being relieved of all duty.” (Cal.
Code Regs., tit. 8, § 11160, subd. 10(D).) Here, neither party
argues that the nature of Huerta’s work was such that he could
not be relieved of all duty.
This reading harmonizes Wage Order No. 16, section
10(D) and (E) with Wage Order No. 16, section 4(B)’s
requirement that an employee be provided a minimum wage for
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all “hours worked.” (Cal. Code Regs., tit. 8, § 11160, subd. 4(B).)
Any time that an employee spends working is compensable as
“hours worked”; this includes an on-duty meal period, which by
definition is a meal period in which the employee is not relieved
of all work obligations. (See id., § 11160, subd. 2(J) [defining
“ ‘[h]ours worked,’ ” in pertinent part, as “the time during which
an employee is subject to the control of an employer”]; Brinker,
supra, 53 Cal.4th at p. 1039 [“the defining characteristic of on -
duty meal periods is failing to relieve an employee of duty, not
simply ‘suffering or permitting’ work to continue”].) This right
to a minimum wage for all “hours worked” derives not from
section 10(D), which specifies the circumstances in which paid
on-duty meal periods are authorized, but rather from Labor
Code section 1194, subdivision (a) and Wage Order No. 16,
section 4(B). The right to a minimum wage for all “hours
worked” exists independently of any right to an unpaid, off-duty
meal period.
This interpretation is also consistent with Araquistain v.
Pacific Gas & Electric Co. (2014) 229 Cal.App.4th 227
(Araquistain) and Gutierrez, supra, 50 Cal.App.5th 786. In
Araquistain, the Court of Appeal considered a CBA that
provided that employees working eight-hour shifts were
permitted to eat meals during work hours and would not be
afforded “additional time therefore at Company expense.”
(Araquistain, at p. 230.) The plaintiffs argued they were
entitled to “missed meal payments” when they were unable to
take a duty-free meal period. (Id. at p. 231.) The Court of
Appeal disagreed, holding that the employees waived their right
to an off-duty meal period under the CBA, as permitted by Labor
Code section 512, subdivision (e), which expressly exempts
employees from the meal period requirements of Labor Code
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section 512, subdivision (a) when they are covered by a collective
bargaining agreement that provides for meal periods. (Id. at
pp. 234, 236.)
The court explained that a “meal period” provided for in a
CBA need not have the same characteristics as the “meal
periods” required by the Labor Code. (Araquistain, supra, 229
Cal.App.4th at p. 234 [“a collectively bargained meal period . . .
need not necessarily be a full 30 minutes, begin before the end
of the fifth hour of work, or even be completely free of all employer
control”] (italics added).) Although the italicized language is
consistent with our view that collective bargaining agreements
may provide for voluntary on-duty meal periods, it does not
speak to the issue of compensation. The “meal periods” in
Araquistain — brief on-duty meal periods — were paid. (Id. at
p. 230.) The court said this was permissible because unionized
employees “are free to bargain over the terms of their meal
period, including whether the meal period will be of a specified
length and whether employees will be relieved of all duty during
that time.” (Id. at p. 238.) But the court said nothing about
whether employees are free to bargain over their right to be paid
minimum wage for all hours worked, including the hours of an
on-duty meal period.
In Gutierrez, the Court of Appeal considered an analogous
exemption from Wage Order No. 16, section 5(A)’s requirement
that employees be compensated at the regular rate or premium
rate for all employer-mandated travel. (Gutierrez, supra, 50
Cal.App.5th at p. 797.) It concluded the exemption allowed
employees to waive the right to compensation at their regular or
premium rates of pay, but not their right to compensation at the
applicable minimum wage. (Id. at pp. 798–799.) The court
reasoned that the Wage Order No. 16, section 5(D) collective
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bargaining exemption did not “mention, much less override, the
separate requirement under Wage Order [No.] 16, section 4(B)
that employees receive compensation ‘not less than the
applicable minimum wage for all hours worked . . . .’ ”
(Gutierrez, at p. 798.) Thus, an employer and union cannot
bargain away workers’ entitlement to be paid a minimum wage
for employer-mandated travel time. (Id. at p. 804.)
Similarly, the Wage Order No. 16, section 10(E) exemption
at issue here neither mentions nor overrides Wage Order No. 16,
section 4(B)’s requirement that all workers be paid a minimum
wage for all “hours worked.” (See Cal. Code Regs., tit. 8,
§ 11160, subds. 4(B) & 10(D), (E).) The wage order does not
purport to limit, nor could it limit, Huerta’s right to file a civil
action to recover minimum wages “[n]otwithstanding any
agreement to work for a lesser wage.” (Lab. Code, § 1194,
subd. (a).) Thus, Wage Order No. 16 does not foreclose Huerta
from seeking compensation for any “hours worked” during an
“unpaid meal period” provided by a collective bargaining
agreement that exempts the employer from compliance with
Wage Order No. 16, section 10(A), (B), and (D).
We next examine under what circumstances an ostensibly
off-duty meal period may qualify as compensable “hours
worked.” In Bono, the Court of Appeal held that “[w]hen an
employer directs, commands or restrains an employee from
leaving the work place during his or her lunch hour and thus
prevents the employee from using the time effectively for his or
her own purposes, that employee remains subject to the
employer’s control,” and thus the employee must be
compensated for that time. (Bono, supra, 32 Cal.App.4th at
p. 975.) We have repeatedly relied on Bono’s reasoning in cases
interpreting the control clause, and we see no reason we should
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Opinion of the Court by Liu, J.
33
not do the same here. (See Frlekin, supra, 8 Cal.5th at p. 1047
[applying Bono]; Morillion, supra, 22 Cal.4th at p. 583 [same];
Mendiola, supra, 60 Cal.4th at p. 842 [citing Morillion’s
application of Bono].) In Brinker, we cited Bono approvingly as
“emphasizing absence of duty and freedom from employer
control as central to unpaid meal periods.” (Brinker, supra, 53
Cal.4th at p. 1036, fn. 15.) There, we agreed with an opinion of
the Division of Labor Standards Enforcement (DLSE) of the
Department of Industrial Relations that an unpaid, off-duty
meal period requires that the employee “(1) has at least 30
minutes uninterrupted, (2) is free to leave the premises, and (3)
is relieved of all duty for the entire period.” (Id. at p. 1036,
italics added.)
We hold that even when a qualifying CBA exempts
employers from the requirements of Wage Order No. 16, section
10(D), an employee must be paid a minimum wage for meal
periods when an employer’s prohibition on leaving the premises
or a particular area forecloses the employee from engaging in
activities he or she could otherwise engage in if permitted to
leave. (See Bono, supra, 32 Cal.App.4th at p. 975.) Under these
circumstances, the employee remains under the employer’s
control despite being relieved of official duties because the
employer is restraining the employee from engaging in
otherwise feasible activities. (See ibid.) Although a meal
period’s limited duration may impose some practical limitations
on employees’ freedom of movement, employees must retain the
freedom to use the time “for their own purposes” if a meal period
is to qualify as off-duty. (Augustus v. ABM Security Services,
Inc. (2016) 2 Cal.5th 257, 270; see Brinker, supra, 53 Cal.4th at
p. 1036 [“ ‘The worker must be free to attend to any personal
business he or she may choose during the unpaid meal period’ ”
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HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
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(quoting Dept. of Industrial Relations, DLSE Opn. Letter
No. 1991.06.03 (June 3, 1991))].) Even at remote worksites,
there is a meaningful difference between being required to eat
at one’s workstation or in a designated meal area and being
allowed to return to one’s personal vehicle or take a walk. In
the latter situations, an employee may be able to make personal
phone calls, take a nap, or simply enjoy a moment of quiet.
This conclusion accords with the view taken by the DLSE
in an opinion letter responding to a claim almost identical to
Huerta’s. (Dept. of Industrial Relations, DLSE Opn. Letter
No. 2001.01.12 (Jan. 12, 2001) p. 1 (DLSE 2001 Opinion Letter);
see Brinker, supra, 53 Cal.4th at p. 1029, fn. 11 [DLSE opinion
letters are “ ‘ “ ‘ “not controlling . . . [but] do constitute a body of
experience and informed judgment to which courts and litigants
may properly resort for guidance” ’ ” ’ ”]; Morillion, supra, 22
Cal.4th at p. 584 [relying on a DLSE opinion letter to inform its
interpretation of the IWC’s wage orders].) In the letter, the
DLSE addressed an employee inquiry regarding whether an
employer could “require[] its employees to remain on its
premises during the employees’ lunch period” without paying
the employees “for the lunch periods in which they are restricted
to the employer’s premises.” (DLSE 2001 Opinion Letter, at
p. 1.) Finding the practice was unlawful, the DLSE explained:
“[A]ny time during which an employee is prohibited from leaving
his or her employer’s premises constitutes ‘hours worked’ under
California law, and that such employees are entitled to
compensation for those hours worked.” (Ibid.) The DLSE
observed that Bono was “precisely on point” and that Morillion
“expressly approved” Bono’s interpretation of “hours worked.”
(Id. at p. 2.) After describing the holdings of those cases, the
DLSE concluded that “employees who were not paid for meal
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HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
35
periods during which they were prohibited from leaving the
employer’s premises, notwithstanding the fact that they were
relieved from all duty during those meal periods, are entitled to
compensation for their unpaid meal periods.” (Id. at p. 3.)
On this record, we express no view on whether CSI’s
restrictions on employee’s movement during meal periods
prohibited Huerta from engaging in activities he might have
otherwise engaged in if permitted to leave. Huerta says he was
prohibited from leaving the Site during meal periods and that
CSI required him to stay at an assigned lunch area at his daily
Installation Site during his meal period. Huerta further states
that he could not return to his vehicle “at any time during the
workday” without special approval. On the other hand, the
distances separating the Installation Site, parking lot, and
public road, as well as the speed limit on the access road, might
have made travel impractical during Huerta’s 30-minute meal
period, and the fact that the features of a worksite make travel
impractical in the time allotted is not sufficient to establish
employer control. (See Augustus, supra, 2 Cal.5th at p. 270.)
Further evidentiary development may be needed to determine if
these impediments, considered in light of the location and
characteristics of the Installation Site, meant that employees
could not engage in personal activities they would otherwise
have been able to engage in absent CSI’s prohibitions.
Finally, we hold that if Huerta’s “unpaid meal period” is
compensable under the wage order as “hours worked,” he is
entitled to seek compensation for that time under Labor Code
section 1194. The statute does not itself provide a substantive
basis for bringing a claim for unpaid wages; instead, it
authorizes an employee to bring a civil action to recover unpaid
wages owed under applicable wage orders. Subdivision (a) of
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Opinion of the Court by Liu, J.
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Labor Code section 1194 provides: “Notwithstanding any
agreement to work for a lesser wage, any employee receiving
less than the legal minimum wage or the legal overtime
compensation applicable to the employee is entitled to recover
in a civil action the unpaid balance of the full amount of this
minimum wage or overtime compensation, including interest
thereon, reasonable attorney’s fees, and costs of suit.” We have
explained that the “statutory and historical context” of this
section “shows unmistakably that the Legislature intended the
IWC’s wage orders to define the employment relationship in
actions under the statute.” (Martinez, supra, 49 Cal.4th at 52.)
“[S]pecific employers and employees become subject to the
minimum wage only under the terms of an applicable wage
order, and an employee who sues to recover unpaid minimum
wages actually and necessarily sues to enforce the wage order.”
(Id. at p. 57.) The fact that the CBAs specify that Huerta’s meal
periods are “unpaid” does not defeat an action pursuant to the
statute; as noted, the statute by its terms authorizes suit for
minimum wages “[n]otwithstanding any agreement to work for
a lesser wage,” including no wage at all. (Lab. Code, § 1194,
subd. (a).)
CONCLUSION
In response to the Ninth Circuit’s certification request, we
conclude as follows: First, when an employee is required to
spend time on his employer’s premises awaiting and undergoing
an employer-mandated exit security procedure that includes the
employer’s visual inspection of the employee’s personal vehicle,
the time is compensable as “hours worked” within the meaning
of Wage Order No. 16.
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Opinion of the Court by Liu, J.
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Second, the time that an employee spends traveling
between the Security Gate and the employee parking lots is
compensable as “employer-mandated travel” under Wage Order
No. 16, section 5(A) if the Security Gate is the first location
where the employee’s presence is required for an employment -
related reason other than the practical necessity of accessing the
worksite. Separately, this travel time is not compensable as
“hours worked” because an employer’s imposition of ordinary
workplace rules on employees during their drive to the worksite
in a personal vehicle does not create the requisite level of
employer control.
Third, when an employee is covered by a collective
bargaining agreement that complies with Labor Code section
512, subdivision (e) and Wage Order No. 16, section 10(E), and
that agreement provides for an “unpaid meal period,” that time
is nonetheless compensable under the wage order as “hours
worked” if the employer prohibits the employee from leaving the
employer’s premises or a designated area during the meal period
and if this prohibition prevents the employee from engaging in
otherwise feasible personal activities. An employee may bring
an action under Labor Code section 1194 to enforce the wage
order and recover unpaid wages for that time.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Huerta v. CSI Electrical Contractors, Inc.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding XX on request by 9th Circuit (Cal. Rules of
Court, rule 8.548)
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S275431
Date Filed: March 25, 2024
__________________________________________________________
Court:
County:
Judge:
__________________________________________________________
Counsel:
Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C.
Blanchard III for Plaintiff and Appellant.
Ford & Harrison, Daniel B. Chammas and Min K. Kim for Defendant
and Respondent.
Atkinson, Andelson, Loya, Ruud & Romo, Steven D. Atkinson, Ronald
W. Novotny and Kieran D. Hartley for Construction Employers’
Association, Southern California Contractors Association and Southern
California Association of Scaffold Contractors as Amici Curiae on
behalf of Defendant and Respondent.
Simpson, Garrity, Innes & Jacuzzi, Paul V. Simpson and Sarah E.
Lucas for the Los Angeles County Chapter, National Electrical
Contractors Association as Amicus Curiae on behalf of Defendant and
Respondent.
[PDF page 40]
Ogletree, Deakins, Nash, Smoak & Stewart, Robert R. Roginson,
Christopher W. Decker and David Szwarcsztejn for Employers Group
and California Employment Law Council as Amici Curiae on behalf of
Defendant and Respondent.
[PDF page 41]
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Peter R. Dion-Kindem
Peter R. Dion-Kindem, P.C.
3856 Davids Road
Agoura Hills, CA 91301
(818) 883-4900
Daniel B. Chammas
Ford & Harrison LLP
350 South Grand Avenue, Suite 2300
Los Angeles, CA 90071
(213) 237-2442