A Ninth Circuit panel yesterday asked the California Supreme Court to answer these three questions in Huerta v. CSI Electrical Contractors, Inc.:
- 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 California Industrial Welfare Commission Wage Order No. 16?
- 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 California Industrial Welfare Commission Wage Order No. 16?
- 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 California Industrial Welfare Commission 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?
Two years ago, answering a question in another Ninth Circuit-referred case, the Supreme Court in Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038 held that employees are entitled to be paid for the time they spend “waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience.” (See here.)
The Ninth Circuit claims California case law is uncertain on the questions it poses. For example, regarding the first question, the federal court says, “The Frlekin factors provide guidance, but no clear answer.”
A district court ruled for the defendant in Huerta on summary judgment and the plaintiff appealed. Video of the May Ninth Circuit oral argument is here.
This is the sixth Ninth Circuit request for Supreme Court assistance since December 2021. Before that, more than eight months had passed without an ask.
The Supreme Court should let the Ninth Circuit know by early September — give or take — whether it will answer the questions. It probably will. The court has granted 16 of the last 17 Ninth Circuit requests for help in resolving questions of California law, dating back to July 2018. The lone denial during that time was in October 2019.
Related:
Asked and answered: California Supreme Court responses to Ninth Circuit questions
The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions
Ask not what the Supreme Court can do for the Ninth Circuit
Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions
The shadow docket . . . of California’s Supreme Court, part 2