2.2 Hours Worked, Travel Time, On-Call, Standby & Makeup Time

Hours Worked, Travel Time, On-Call, Standby & Makeup Time

In California wage and hour litigation, determining what constitutes hours worked is frequently the threshold battleground. While the federal Fair Labor Standards Act (FLSA) relies upon the Portal-to-Portal Act of 1947 (29 U.S.C. § 254) to exclude preliminary and postliminary activities from compensable time, California has deliberately rejected this federal framework in favor of a far more expansive, protective standard.

---

1. The Statutory Definition of "Hours Worked" in California

Under Section 2(G) or 2(H) of all 17 IWC Wage Orders, "hours worked" is defined 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."

This statutory standard creates two independent, disjunctive prongs. An employee must be compensated if either prong is satisfied:

                                    ┌──────────────────────────────┐
                                    │   "Hours Worked" Standard   │
                                    │    (IWC Wage Orders § 2)     │
                                    └──────────────┬───────────────┘
                                                   │
                         ┌─────────────────────────┴─────────────────────────┐
                         ▼                                                   ▼
         ┌──────────────────────────────┐                    ┌──────────────────────────────┐
         │     Prong 1: Employer        │                    │    Prong 2: Suffered or      │
         │          Control             │         OR         │      Permitted to Work       │
         ├──────────────────────────────┤                    ├──────────────────────────────┤
         │ Employee is subject to the   │                    │ Employer knows or has reason │
         │ control of the employer,     │                    │ to believe labor is being    │
         │ even if performing no manual │                    │ performed, even without an   │
         │ labor (e.g., waiting, bag    │                    │ explicit demand or directive │
         │ checks, mandatory transit).  │                    │ (e.g., answering emails).    │
         └──────────────────────────────┘                    └──────────────────────────────┘

1. The Control Prong: An employee is working whenever they are subject to the employer's restraint, direction, or command, even if they are completely idle and performing no physical or mental labor.
2. The Suffered or Permitted Prong: An employee is working whenever the employer knows or has reason to know that work is being performed for its benefit, even if the employer never formally ordered or requested the work (e.g., an employee checking work emails at night from home without supervisor pre-approval).

---

2. California "Control" Doctrine vs. Federal FLSA Standards

The fundamental divide between California law and federal law is illustrated by how California courts have repeatedly refused to import federal Portal-to-Portal Act limitations into California jurisprudence.

Mandatory Exit Security Checks: Apple Inc. v. Frlekin

Under federal law, the United States Supreme Court held in Integrity Staffing Solutions, Inc. v. Busk (2014) 574 U.S. 27 that mandatory warehouse security screenings are non-compensable under the FLSA because exit screenings are not "integral and indispensable" to the principal activities workers were hired to perform.

In Apple Inc. v. Frlekin (2020) 9 Cal.5th 419, the California Supreme Court expressly rejected the federal rule. Apple required retail store employees to clock out and then submit their personal bags, backpacks, and iPhones to mandatory security searches before leaving the store for meal breaks or at the end of the shift. The California Supreme Court held that:

• Employees waiting for and undergoing mandatory searches are under the employer's control because they are confined to the premises and subject to disciplinary action if they leave.
• Even though employees voluntarily chose to bring bags to work, Apple's mandatory search policy exercised employer control over them while they waited.
• Therefore, all time spent waiting for and undergoing exit searches is 100% compensable hours worked under California law.

Rejection of the Federal De Minimis Doctrine: Troester v. Starbucks Corp.

Under the FLSA, federal courts apply a de minimis rule, permitting employers to disregard brief, insubstantial periods of off-the-clock work (typically under 10 minutes) that cannot be practically recorded.

In Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, the California Supreme Court held that the federal de minimis doctrine has never been adopted into California wage orders. Where an employer regularly requires an employee to spend 4 to 10 minutes performing routine closing duties off-the-clock (such as locking the front door, transmitting sales data, setting the security alarm, or walking co-workers to their cars for safety), every minute must be tracked and compensated. California law protects employees who are required to work even minor increments of time on a regular basis.

Pre-Shift Health Screenings and Donning/Doffing

Applying the control standard, California courts and DLSE enforcement policies require compensation for:

• Pre-shift temperature checks, COVID-19 symptom questionnaires, or health screenings mandated by the employer or public health directives.
• Donning and doffing specialized protective clothing, biohazard suits, or heavy safety equipment on the employer's premises.
• Mandatory drug or alcohol testing conducted during employment.

---

3. California Travel Time Rules

California law distinguishes sharply between ordinary commuting and compulsory business travel.

                                    ┌──────────────────────────────┐
                                    │    Employee Travel Event     │
                                    └──────────────┬───────────────┘
                                                   │
         ┌─────────────────────────────────────────┼─────────────────────────────────────────┐
         ▼                                         ▼                                         ▼
┌──────────────────────────────┐          ┌──────────────────────────────┐          ┌──────────────────────────────┐
│    Ordinary Commute          │          │  Mandatory Transit / Shuttle │          │  Temporary Worksite Travel   │
├──────────────────────────────┤          ├──────────────────────────────┤          ├──────────────────────────────┤
│ Home to regular worksite     │          │ Employer mandates meeting at │          │ Travel to non-regular site;  │
│ and return.                  │          │ staging site to ride bus     │          │ excess time beyond normal    │
│                              │          │ (Morillion v. Royal Packing).│          │ commute is compensable.      │
│ *NOT COMPENSABLE*            │          │ *100% COMPENSABLE*           │          │ *EXCESS TIME COMPENSABLE*    │
└──────────────────────────────┘          └──────────────────────────────┘          └──────────────────────────────┘

1. Ordinary Commute

Travel between an employee's personal residence and their regular, fixed workplace is considered ordinary commute time and is uncompensated, regardless of distance or traffic delays.

2. Mandated Transportation: Morillion v. Royal Packing Co.

In Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, an agricultural employer required farmworkers to meet at designated pick-up parking lots each morning and board company-provided buses to travel to the agricultural fields. Workers were prohibited from using personal vehicles to drive directly to the fields.

The California Supreme Court ruled that because the employer mandated the use of its transportation, the workers were subject to the employer's control from the moment they boarded the bus until they were returned to the departure lot. Consequently, the entire travel time was compensable hours worked, even though workers engaged in no physical labor during the bus ride.

3. Temporary Worksite Travel: The Excess Travel Rule

When an employer assigns an employee to travel to a temporary job site or client location that differs from their regular workplace:

• The employee's normal commute time (home to regular office) is deducted.
• All travel time that exceeds the normal commute time is fully compensable work time.
• Mileage reimbursement is mandatory under Labor Code § 2802 for all vehicular miles driven beyond the employee's standard commute distance.

4. Intra-Day Travel

Any travel during the workday between two job sites, customer locations, or business errands directed by the employer is 100% compensable hours worked, and mileage must be reimbursed.

5. Out-of-Town Overnight Travel

Under federal FLSA regulations (29 CFR § 785.39), passenger travel on airplanes, trains, or buses outside normal working hours is non-compensable unless actual work is performed during transit. California rejects this federal limitation:

• In California, all time spent traveling to an out-of-town destination at the employer's direction—including passenger transit time on commercial flights, airport layovers, and airport check-ins—is compensable hours worked under the employer control doctrine.
• Only bona fide personal meal periods and bona fide sleep time during which the employee is completely relieved of all duties and free to come and go are non-compensable.

6. Travel Pay Wage Rates

Employers may establish a separate travel rate of pay (e.g., minimum wage) that is lower than the employee's regular operational wage rate, provided that:

1. The lower travel rate is agreed upon in advance in writing.
2. The rate equals or exceeds the applicable state or local minimum wage.
3. The rate is explicitly documented on the employee's Labor Code § 2810.5 Wage Theft Notice and itemized on paystubs pursuant to Labor Code § 226.
4. If the employee works overtime during the workweek, the employer must calculate overtime using the blended (weighted average) regular rate of pay.

---

4. Standby and On-Call Compensation Standards

Whether on-call or standby time must be compensated as hours worked depends on whether the standby is legally characterized as controlled or uncontrolled.

The 7-Factor Control Test: Mendiola v. CPS Security Solutions

In Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, the California Supreme Court addressed resident trailer security guards required to remain on construction sites during 16-hour on-call shifts. The Court articulated seven critical factors to evaluate whether on-call time is compensable:

1. Geographic Restrictions: Is the employee confined to the worksite or a tightly restricted radius?
2. Response Time: Must the employee respond in person within an exceptionally tight window (e.g., 15 minutes)?
3. Call Frequency: How frequently is the employee called back into active duty?
4. Device Restrictions: Is the employee required to stay tethered to a fixed phone, or free to move with a mobile phone?
5. Ability to Trade Shifts: Can the employee arrange for a substitute if they wish to attend personal events?
6. Disciplinary Consequences: Are there severe disciplinary penalties for failing to answer or missing a call?
7. Personal Use of Time: Can the employee practically engage in normal personal pursuits (e.g., drinking alcohol, sleeping, running errands, caring for family)?

In Mendiola, the Court held that the guards' on-call time was fully compensable. Furthermore, the Court established that under Wage Order 4, employers cannot deduct sleep time from 24-hour on-call shifts, invalidating federal-style sleep exclusion agreements for non-exempt security staff.

---

5. Makeup Time Under California Labor Code § 513

In California, non-exempt employees are normally entitled to daily overtime pay (1.5x) for any hours worked beyond 8 in a workday under Labor Code Section 510. However, Labor Code Section 513 provides a narrow statutory mechanism known as Makeup Time, allowing employees to take off time for personal obligations and make up those hours without triggering daily overtime.

                    ┌────────────────────────────────────────────────┐
                    │          Labor Code § 513 Conditions           │
                    ├────────────────────────────────────────────────┤
                    │ 1. Advance written employee request            │
                    │ 2. Missed time made up within SAME workweek    │
                    │ 3. Daily total capped at 11 hours              │
                    │ 4. Weekly total capped at 40 straight hours    │
                    │ 5. Absolute ban on employer solicitation       │
                    └────────────────────────────────────────────────┘

The 6 Mandatory Statutory Conditions

To remain legally compliant, all of the following six conditions must be met:

1. Advance Signed Written Request: The employee must submit a signed written request to the employer prior to working the makeup hours. A separate request is required for each occasion, though an employee may submit an ongoing request up to four weeks in advance for recurring personal obligations.
2. Same Workweek Rule: The makeup hours must be performed within the same statutory workweek as the lost time. Hours taken off in Week 1 cannot be made up in Week 2, even if both fall within the same pay period.
3. Daily Cap of 11 Hours: An employee cannot work more than 11 hours in any single workday, including makeup time. If an employee works 12 hours on a makeup day, the 12th hour must be paid at 1.5x overtime.
4. Weekly Cap of 40 Hours: Total weekly hours cannot exceed 40 hours without overtime pay. Makeup time cannot be used to generate weekly overtime at straight-time rates.
5. Absolute Ban on Employer Solicitation: Labor Code § 513 strictly prohibits an employer from soliciting, encouraging, suggesting, or coercing an employee to request makeup time. The request must originate purely from the employee's voluntary initiative. Soliciting makeup time to avoid paying daily overtime renders the arrangement void.
6. Recordkeeping Mandate: The employer must retain all written employee makeup requests on file for at least three years pursuant to Labor Code § 1174.

---

6. Numerical Calculation: Travel Time and Makeup Time

Calculation 1: Temporary Worksite Travel

Scenario: Maria's standard daily commute from home to her regular office is 30 minutes (15 miles each way). Her employer directs her to report directly to a temporary client site for two days. Her commute from home to the client site is 75 minutes (45 miles each way).

• Compensable Travel Time per Day:
  • Gross travel time: 75 min (morning) + 75 min (evening) = 150 minutes (2.5 hours).
  • Normal commute deduction: 30 min + 30 min = 60 minutes (1.0 hour).
  • Net compensable travel time: 150 min – 60 min = 90 minutes (1.5 hours) of compensable hours worked per day.
• Reimbursable Mileage per Day (Labor Code § 2802):
  • Gross round-trip miles: 45 + 45 = 90 miles.
  • Normal round-trip commute deduction: 15 + 15 = 30 miles.
  • Net reimbursable mileage: 90 – 30 = 60 miles per day at the applicable IRS/employer rate.

Calculation 2: Makeup Time Overrun

Scenario: David earns $24.00/hour. He requests in writing to take off 4 hours on Tuesday for personal business and make up the 4 hours on Thursday. On Thursday, David works his regular 8-hour shift plus the 4 makeup hours, totaling 12 hours. David's total hours for the workweek are 40.

• Daily Overtime Analysis (Labor Code § 513):
  • Hours 1 through 8: Straight time ($24.00/hr).
  • Hours 9, 10, and 11: Exempt from daily overtime under § 513 ($24.00/hr straight time).
  • Hour 12: Exceeds the 11-hour statutory ceiling. Must be paid at 1.5x regular rate ($36.00/hr).