Metropolitan News-Enterprise


Friday, August 20, 2021


Page 3


Ninth Circuit:

LAX-Based Employees Don’t Get Pay for Security Waits


By a MetNews Staff Writer


A business operating at Los Angeles International Airport is not required, under California’s Labor Code, to pay employees for the time they spend going through security checks, the Ninth U.S. Circuit Court of Appeals has decided.

Ruling in a diversity action—initially filed in Los Angeles Superior Court and removed by the defendant, Host International, Inc., to the U.S. District Court for the Central District of California—a three-judge panel on Wednesday held in a memorandum opinion that the complaint in a putative class action failed to allege any cognizable claims.

The putative class action was brought by Jesus Cazares who is assigned by Host, which provides catering services to travelers, to work as an attendant at the Admirals Club, a private lounge operated by American Airlines for fee-paying passengers.

Employer Blamed

The amended complaint sets forth:

“Pursuant to a uniform policy originated by Defendant, all hourly employees are subject to lengthy security checks. Prior to each shift. Plaintiff must complete an airport security check, much like a typical traveler. Plaintiff must show his badge, and put his belongings in a tray that goes through a scanner.

“He must then walk through a metal detector and a wand check, if necessary, and then walks to his place of work. This entire process can take between five (5) and fifteen (15) minutes, which is uncompensated by Defendant. Pursuant to the Defendant’s ‘Clocking In/Clocking Out Procedures,’ Plaintiff and other Class Members can only clock-in once they are at their assigned work facility.”

The pleading continues:

“Thus, at the discretion and control of the Defendant. Plaintiff and members of the Plaintiff Class were and are required to wait in line for security checks for each day at the start of their shift. This daily uncompensated waiting time during security checks was done in order to undergo searches for possible contraband, and this consequential wait time is necessary to the employee’s primary work without compensation.” District Court Judge Percy Anderson on July 1, 2020, dismissed some of the claims with prejudice, granting leave to amend as to others. Cazarez opted not to amend, requesting a final judgment, and Anderson on July 16, 2020, provided one; the plaintiff appealed.

California’s High Court

A panel comprised of Circuit Judges Mark J. Bennett, Richard Paez and Diarmuid O’Scannlain quoted the California Supreme Court’s 2020 opinion in Frlekin v. Apple Inc. as saying that when compensability of time is considered, courts are to consider “the degree of the employer’s control” over the employee when engaged in the activity in question.

The Ninth Circuit opinion says:

“Cazares does not dispute that the airport security checks to which he and putative class members are subject ‘are mandated by a federal law’…, and are administered by a federal body, the Transportation Security Administration….Despite Cazares’s concession…, Cazares’s first amended complaint does not allege any facts showing that Host exercised any ‘level of control’ over him and putative class members during the security check process….The most that can be gleaned from the allegations in the first amended complaint is that Cazares must pass through a TSA security check en route to his worksite at the Admiral Club inside a secured portion of Los Angeles International Airport.”

That, the opinion declares, is not enough.

Confinement to Premises

The operative complaint also avers that “by giving the employees only thirty minutes for a meal period even despite the fact that employees were subject to security checks, Defendant effectively required the employee to stay on premises for all meal periods,” insisting:

“Employees should be free to leave the premises for the meal period.”

The opinion says that Cazares was indeed free to leave the “premises,” and with time to consume a meal inside the 30 minutes allotted. It explains:

“Cazares’s argument fails because it assumes that the only way Host could satisfy its obligation to permit him to ‘leave the premises’ of the worksite during his meal break would be to permit Cazares to leave the secured area of the airport.

“The first amended complaint, however, fails to allege any factual basis for such an assumption. Cazares is employed by Host and assigned to work at the Admiral Club inside the secured area of Los Angeles International Airport. It is reasonable to infer, then, that the Admiral Club is the ‘premises’ from which Host must permit him to leave.

“Cazares does not allege any facts suggesting that Host bailed or discouraged him from leaving his worksite at the Admiral Club during his meal break. Cazares fails to allege any facts regarding Host’s conduct, policies, statements, or actions relating to the location of Cazares’s meal breaks.”

Not mentioned in the opinion is an admission in the initial complaint, filed in the Superior Court, that employees have access to prepared meals at multiple locations within the area past the security checkpoints. That pleading notes:

“Defendant provides Plaintiff and other members of the Plaintiff Class with free meals available at a number of vendors.”

Rest Periods

Cazares contended that he did not truly have “ten...minutes net rest time per four... hours” worked as required by a California regulation because he “had to spend several minutes walking to the designated rest area.”

The judges observed that the pleading does not say that there is one specific place the employees must go to during their breaks, and scoffed:

“…Cazares’s factual allegations concede that he was not required to take his rest period at a designated rest area several minutes away by walking because he caveats the allegation by noting that his break was cut short ‘on many occasions.’

“If Cazares were required to take his rest period at a certain designated area that was several minutes away, his rest period would always be cut short by that walking time. Cazares fails to allege any facts about Host’s policies regarding the location or duration of his rest break.”

The case is Cazares v. Host International, Inc., 20-55803.


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