California Supreme Court Asked To Weigh In On "Hours Worked" Questions

Published date15 July 2022
Subject MatterEmployment and HR, Government, Public Sector, Employee Benefits & Compensation, Government Contracts, Procurement & PPP
Law FirmSeyfarth Shaw LLP
AuthorMr Sage E. Fishelman and Jeffrey Berman

Seyfarth Synopsis: The Ninth Circuit Court of Appeals once again has asked the California Supreme Court for assistance in determining important questions of California law. Last week, the Ninth Circuit certified three questions to the California Supreme Court asking it to determine whether a construction industry employer should have paid its employees in three different circumstances.


The California Flats Solar Project ("the Project") retained CSI Electrical Contractors ("CSI") for procurement, installation, construction, and testing services for Phase 2 of the Project. George Huerta, a construction worker who performed services for CSI through a subcontractor, Milco National Constructors, claimed that CSI should have paid him for the time he spent driving down a dirt road at low speeds, and waiting to be inspected by security before entering and leaving the construction site. Additionally, Huerta claimed that he and his co-workers should have been paid for their meal breaks because they were prohibited from leaving the job site during them.

The workers arrived at the construction site via personal vehicles, carpools, and buses. The Project had one entrance, requiring workers to first pass a guard shack at the entrance, then to stop at a Security Gate several miles down the road where a security guard scanned each worker's badge and sometimes peered inside vehicles. CSI told workers that the Security Gate was the first place they "were required to be at the beginning of the day in order to work." The same badging out process at the Security Gate was used to exit the site. Since many workers exited the Project around the same time each day, lines at the Security Gate often were five to twenty minutes long.

Additionally, under the Project's Collective Bargaining Agreement ("CBA"), workers had to comply with the California Department of Fish and Wildlife Incidental Take Permit ("ITP"). The ITP imposed specific rules regarding the endangered species present at the construction site. Some of the rules included a restriction on speed limits, passing, or creating dust, as well as general precautions about endangered species such as requiring a biologist to monitor the site to minimize disturbances to the species' habitats, and waiting for the biologist to clear the road each morning before anyone could enter.

Huerta asked the Ninth Circuit to overturn an unfavorable trial court decision. Specifically, Huerta asked the Ninth Circuit to reverse three...

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