FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE HUERTA, an 

individual, on behalf of himself 

and all others similarly situated 

and as a representative 

plaintiff,

Plaintiff-Appellant,

v.

CSI ELECTRICAL 

CONTRACTORS, INC.,

Defendant-Appellee,

and

FIRST SOLAR, INC.; CALIFORNIA 

FLATS SOLAR LLC; CA FLATS 

SOLAR 130, LLC; CA FLATS 

SOLAR 150, LLC; CAL FLATS 

SOLAR CEI, LLC; CAL FLATS 

SOLAR HOLDCO, LLC; MILCO 

NATIONAL CONSTRUCTORS,

INC.; CALIFORNIA COMPACTION 

CORPORATION,

Defendants.

No. 21-16201

D.C. No.

5:18-cv-06761-BLF

ORDER 

CERTIFYING 

QUESTIONS TO 

THE SUPREME 

COURT OF 

CALIFORNIA
2 HUERTA V. CSI ELEC. CONTRACTORS

Filed July 8, 2022

Before: Sandra S. Ikuta, Jacqueline H. Nguyen, and

John B. Owens, Circuit Judges.

Order

SUMMARY*

California Law

The panel certified to the Supreme Court of California 

the following questions:

(1) 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?

(2) 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 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
HUERTA V. CSI ELEC. CONTRACTORS 3

travel” within the meaning of California 

Industrial Welfare Commission Wage 

Order No. 16?

(3) 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?

ORDER

We respectfully ask the Supreme Court of California to 

exercise its discretion to decide the certified questions set 

forth in section II of this order.

I. Administrative Information

We provide the following information in accordance 

with California Rule of Court 8.548(b)(1). The caption of 

this case is:

No. 21-16201

GEORGE HUERTA, an individual, on 

behalf of himself and all others similarly 
4 HUERTA V. CSI ELEC. CONTRACTORS

situated and as a representative plaintiff, 

Plaintiff-Appellant,

v.

CSI ELECTRICAL CONTRACTORS, 

INC., Defendant-Appellee

and

FIRST SOLAR, INC.; CALIFORNIA 

FLATS SOLAR LLC; CA FLATS SOLAR 

130, LLC; CA FLATS SOLAR 150, LLC; 

CAL FLATS SOLAR CEI, LLC; CAL 

FLATS SOLAR HOLDCO, LLC; MILCO 

NATIONAL CONSTRUCTORS, INC.; 

CALIFORNIA COMPACTION 

CORPORATION, Defendants.

The names and addresses of counsel for the parties are:

For Plaintiff-Appellant George Huerta: 

Lonnie C. Blanchard, III, 177 E Colorado 

Boulevard, Pasadena, CA 91105; Peter R. 

Dion-Kindem, The Dion-Kindem Law Firm, 

2945 Townsgate Road, Suite 200, Westlake 

Village, CA 91301.

For Defendant-Appellee CSI Electrical 

Contractors, Inc.: Daniel Benjamin 

Chammas and Min Kyung Kim, Ford & 

Harrison, LLP, 350 S Grand Avenue, Suite 

2300, Los Angeles, CA 90071.
HUERTA V. CSI ELEC. CONTRACTORS 5

As required by Rule 8.548(b)(1), we designate George 

Huerta as the petitioner if our request for certification is 

granted. He is the appellant before our court.

II. Certified Questions

We certify to the Supreme Court of California the 

following three questions of state law that are now before us:

(1) 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?

(2) 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?

(3) 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 
6 HUERTA V. CSI ELEC. CONTRACTORS

Section 1194, when that time was 

designated as an unpaid “meal period” 

under a qualifying collective bargaining 

agreement?

Our phrasing of these questions should not restrict the 

California Supreme Court’s consideration of the issues 

involved; that court may reformulate the questions. Cal. R. 

Ct. 8.548(f)(5).

We agree to accept and to follow the decisions of the 

California Supreme Court. Id. 8.548(b)(2); see also Frlekin 

v. Apple, Inc., 870 F.3d 867, 869 (9th Cir. 2017) (“[W]ith 

respect to a certified question, . . . the Ninth Circuit is bound 

by the California Supreme Court’s interpretation of 

California law.” (citation omitted)).

III. Statement of Facts

This case comes from a construction site at the California 

Flats Solar Project (“the Project”), a solar power facility in 

Monterey County, California, located on private property 

called Jack Ranch. The owner of the facility, First Solar 

Electric, Inc., retained CSI Electrical Contractors (“CSI”) for 

“procurement, installation, construction, and testing services 

on Phase 2 of the Project.”

Appellant George Huerta worked for CSI through the 

subcontractor Milco National Constructors, Inc. Two 

collective bargaining agreements (“CBAs”) governed his 

employment: the Operating Engineers Local Union No. 3 of 

the International Union of Operating Engineers, AFL-CIO’s 

CBA, and the Project Labor Agreement specific to the 

Project.
HUERTA V. CSI ELEC. CONTRACTORS 7

For the Project, First Solar Electric was required to 

obtain and follow an Incidental Take Permit (“ITP”) from 

the California Department of Fish and Wildlife, which 

imposed specific rules regarding the presence of local 

endangered species. The CBA required workers to comply 

with the permit. The ITP imposed speed limits and other 

restrictions on the work site. A biologist also monitored the 

site to minimize disturbances to the species’ habitats and 

cleared the road each morning before anyone could enter.

Workers commuted to the site via personal vehicles, 

carpools, and buses. The Project had one entrance, requiring 

workers to first pass a guard shack at the entrance, and then 

to stop at the Security Gate several miles down the road. 

Sometimes workers waited outside the entrance before the 

sun rose or the road was cleared by the biologist.

After passing through the entrance, CSI workers stopped 

at the Security Gate miles down the road, where a guard 

scanned each worker’s badge and sometimes peered inside 

vehicles or truck beds. 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 badgingout 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.

On their way to work, once through the Security Gate, 

employees drove ten to fifteen more minutes to the parking 

lots down the road. On the drive, they had to follow various 

rules and restrictions regarding speed limits and passing; 

prohibitions on smoking, gambling, drinking, using drugs or 

firearms, and creating dust; and general precautions about 

the endangered species. CSI told workers that 

noncompliance could result in suspension or termination.
8 HUERTA V. CSI ELEC. CONTRACTORS

CSI also informed workers they “were required to stay 

on the job Solar Site during the entire workday” including 

“during [their] meal periods.”

The district court granted CSI’s first motion for partial 

summary judgment on April 28, 2021, and its second on June 

25, 2021. The district court ruled that CSI’s requirements 

that workers undergo the exit process and drive between the 

Security Gate and the parking lots before and after each shift 

did not rise to the level of control sufficient to require 

compensation. The district court also determined that the 

Security Gate was not the “first required location” as defined 

by Wage Order No. 16, and that Huerta’s meal period claims 

were statutorily exempted because he worked under a 

qualifying CBA. The district court relied on its decisions in 

two earlier class actions arising from the same site. See 

Griffin v. Sachs Elec. Co., 390 F. Supp. 3d 1070 (N.D. Cal. 

2019), aff’d, 831 F. App’x 270 (9th Cir. 2020) 

(unpublished); Durham v. Sachs Elec. Co., No. 18-cv04506-BLF, 2020 WL 7643125 (N.D. Cal. Dec. 23, 2020).

The parties stipulated to the judgment, which reserved 

Huerta’s right to appeal. Huerta timely appealed to our 

court.

IV. Explanation of Certification Request

No controlling California precedent has answered the 

certified questions presented here. These questions are 

dispositive in this case and have significant public policy 

implications for California workers and employers.

A. Exit Process

California law provides no clear answer to the certified 

question of whether California Industrial Welfare 
HUERTA V. CSI ELEC. CONTRACTORS 9

Commission Wage Order No. 16 requires compensating 

workers for time spent on the employer’s premises in a 

personal vehicle, waiting to scan an identification badge, 

permit security guards to peer into the vehicle, and exit a 

Security Gate.1

 Wage Order No. 16 provides that employers 

must pay employees for all “hours worked,” which 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.” Wage Order 16 §§ 2(J), 4(A). The 

California Supreme Court has held the two prongs are 

“independent factors, each of which defines whether certain 

time spent is compensable as ‘hours worked.’” Frlekin v. 

Apple, 457 P.3d 526, 531 (Cal. 2020) (quoting Morillion v. 

Royal Packing Co., 995 P.2d 139, 143 (Cal. 2000)).

Huerta argues that this “mandatory exit security process”

constitutes “hours worked” under both the “control” prong,

and the “suffer or permit” prong, of Wage Order No. 16. On

appeal, he specifically challenges the waiting time and

security process only upon exit from, not entry to, the site. 

CSI refers to this time merely as “time exiting the project,”

and contends the time is not compensable under the

“control” prong because of the standard from Frlekin, and 

does not constitute hours worked under the “suffer or 

permit” prong due to the rule in Hernandez v. Pacific Bell 

Telephone Co., 239 Cal. Rptr. 3d 852, 860 (Ct. App. 2018).

1 Wage Order No. 16 regulates the wages, hours and working 

conditions in certain on-site occupations in the construction, drilling, 

logging, and mining industries.
10 HUERTA V. CSI ELEC. CONTRACTORS

1. “Control” Prong

The California Supreme Court in Frlekin clarified the 

“determinative” question for the “control” prong is the level 

of control, “rather than the mere fact that the employer 

requires the employees’ activity.” 457 P.3d at 533, 538 

(quoting Morillion, 995 P.2d at 146). For “onsite employercontrolled activities,” whether the activity is required is 

relevant but not dispositive; courts also consider additional 

relevant factors “including, but not limited to, 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.” Id. at 538. But the analyses and weight given to 

the factors differ slightly when addressing, for example, onsite security exit processes, see id., and mandatory on-call 

time on the employer’s premises, see, e.g., Mendiola v. CPS 

Sec. Sols., Inc., 340 P.3d 355 (Cal. 2015). The analyses and 

weight also differ when addressing the employee’s travel 

time off the employer’s premises, such as travel to and from 

the employer’s premises on employer-mandated 

transportation, Morillion, 995 P.2d at 140, and travel to and 

from the employer’s premises on employer-provided 

optional transportation, Overton v. Walt Disney Co., 38 Cal. 

Rptr. 3d 693, 699–701 (Ct. App. 2006); Hernandez, 239 Cal. 

Rptr. 3d at 856–59. And no California court has addressed 

which iteration of the control analysis applies to time spent 

on the employer’s premises, in a personal vehicle, waiting 

for and undergoing an exit process.

The Frlekin factors provide guidance, but no clear 

answer. Like the bag check in Frlekin, the process here was 

required to exit, and in both cases the process occurred on 

the employer’s premises and primarily benefitted the 
HUERTA V. CSI ELEC. CONTRACTORS 11

employer.2 However, the disciplinary measures here were 

less extensive than those in Frlekin.

3

 And the overall degree 

of control seems lower than in Frlekin, where the employer 

compelled workers to “perform specific and supervised tasks 

while awaiting and during the search,” like finding and 

waiting for an available manager or guard to conduct the 

search, opening all bags and packages and moving items 

inside, presenting personal technology for inspection, and 

“providing a personal technology card for device 

verification.” 457 P.3d at 531. While Huerta and his 

colleagues could also wait for up to twenty minutes to exit, 

he merely had to roll down his window and present his 

badge, and it is not clear that guards always looked into car 

windows or truck beds, or that this caused delays or required 

workers to take any action.

California case law concerning employer control, and 

factors such as whether the control is exerted on or off the 

employer’s site, provides further guidance, but again no 

clear answer. The control exerted by the employers in 

Morillion and Mendiola—which the California Supreme 

2 The Frlekin exit searches “promote[d] [the employer’s] interest in 

loss prevention.” 457 P.3d at 535. While CSI argues the exit process 

was “strictly for the purposes of ingress and egress,” the record supports 

that the purpose was theft prevention, and it is reasonable to infer CSI 

also intended to promote security and compliance with the 

environmental restrictions.

3 Compared to the extensive written discipline policy in Frlekin, 

457 P.3d at 536, including and up to termination for failure to undergo 

an exit search, here workers without badges could exit by obtaining 

clearance from the security guard shack. While workers could be 

disciplined or terminated if they twice attempted to exit the Security Gate 

“too early at the end of the workday,” this was because early arrival 

indicated workers were speeding on the internal roads, and so discipline 

was unrelated to the exit process.
12 HUERTA V. CSI ELEC. CONTRACTORS

Court deemed sufficient to require compensation—seems 

comparatively greater than that exerted here. In Morillion, 

995 P.2d at 140–41, workers were required to travel on 

employer-provided buses from off-site meeting points to the 

employer’s premises, so the employees were off-site but 

under the employer’s control. In Mendiola, 340 P.3d at 357–

58, workers were restricted from leaving the premises during 

on-call periods and required to immediately respond to 

activated alarms, though not required to take other actions, 

so the employees were on-site and under the employer’s 

control (because they were on-duty and required to stay on 

site). The California Court of Appeal in Overton, 38 Cal. 

Rptr. 3d at 699–701, emphasized that the mandatory nature 

of the transportation was critical in making off-site travel 

time compensable (though Frlekin, 457 P.3d at 538, stated 

that the mandatory nature was a non-dispositive factor for 

security exit processes). In comparison, Huerta could be in 

his personal vehicle, but was required to go through the 

Security Gate to leave the job site, and was on the 

employer’s premises until he exited the Security Gate, which 

meant he was necessarily prevented from performing 

personal errands until he exited the Gate and left the 

employer’s premises.

As this case contains elements of the Frlekin security 

process and the Morillion and Overton transportation 

requirements, but does not fit neatly into either set of cases, 

we are uncertain whether CSI exerted sufficient control over 

Huerta for his time spent related to the exit process to 

constitute “hours worked” under Wage Order No. 16. 

Although Huerta was required to be on-site (and under some 

degree of employer control) until he exited the employer’s 

premises, he was in his personal vehicle, and the degree of 

employer control was not substantial. And the consequence 

of any interpretation of the Wage Order could significantly 
HUERTA V. CSI ELEC. CONTRACTORS 13

impact employers and employees throughout California that 

require workers to badge into or out of worksites, buildings, 

parking garages, or other locations.

2. “Suffer or Permit” Prong

Huerta also argues that the time spent waiting for and 

undergoing the exit process was compensable as “hours

worked” under the “suffer or permit” prong of Wage Order 

No. 16. Under California law, “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, 457 P.3d at 531 (first citing Morillion, 

995 P.2d at 144–45; then citing Troester v. Starbucks Corp., 

421 P.3d 1114 (Cal. 2018); and then citing Hernandez, 

239 Cal. Rptr. 3d at 856). The “phrase ‘suffered or permitted 

to work, whether or not required to do so’ . . . encompasses 

a meaning distinct from merely ‘working.’ . . . [It] can be 

interpreted as time an employee is working but is not subject 

to an employer’s control.” Morillion, 995 P.2d at 145. And 

“a benefit is neither a necessary nor a sufficient condition for 

liability under the ‘suffer or permit’ standard. Instead . . . , 

the basis of liability is the defendant’s knowledge of and 

failure to prevent the work from occurring.” Martinez v. 

Combs, 231 P.3d 259, 282 (Cal. 2010).

The California Supreme Court has never explicitly 

defined “work” in the phrase “suffer or permit to work” or 

issued an opinion that squarely addresses the question. Cf. 

id. at 273–74, 282 (discussing the history of the phrase and 

its interaction with employer control); Dynamex Ops. W. v. 

Super. Ct., 416 P.3d 1, 32 (Cal. 2018) (discussing how the 

phrase impacted the definition of independent contractor).
14 HUERTA V. CSI ELEC. CONTRACTORS

The California Court of Appeal has held “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. Mere transportation of tools, which does 

not add time or exertion to a commute, does not meet this 

standard.” Hernandez, 239 Cal. Rptr. 3d at 860 (quoting 

Taylor v. Cox Commc’ns Cal., LLC, 283 F. Supp. 3d 881, 

890 (C.D. Cal. 2017)).

Here, Huerta was a forklift operator, and there is no 

record evidence suggesting his manager would recognize 

driving his personal vehicle, rolling down his window, or

scanning his identification badge as “work.” He does not 

contest these were the only required activities, but instead 

argues they met the legal standard because he had to literally 

exert himself to do so.

However, the California Supreme Court has never 

explicitly adopted this definition and we are uncertain if it 

would. The answer would be dispositive here if decided in 

Huerta’s favor, so we respectfully certify this question.

B. Drive Time

No controlling California precedent has answered the 

certified question of whether Wage Order No. 16 requires 

compensating workers for time spent driving between the 

entrance/exit of the employer’s premises and the location 

where the shift begins/ends. Though the time spent driving 

between the employee parking lots and the Security Gate 

blends into the time spent waiting for the exit process, CSI’s 

control differed between the drive time and the exit process, 

and Huerta’s theory of liability is also distinct.
HUERTA V. CSI ELEC. CONTRACTORS 15

1. “Control” Prong

Huerta argues he should be paid for the “drive time” 

between the Security Gate and the employee parking lots as 

“hours worked” under the “control” prong of Wage Order 

No. 16, as he was required to be on the employer’s premises, 

could not use the time for his own purposes, and was subject 

to CSI’s rules on the road. CSI contends that the relevant 

question is the level of control, not whether workers could 

use the time for their own purposes, and that enforcing rules 

on the road does not rise to a compensable level of control.

Several of the Frlekin control factors favor Huerta: The 

drive occurred on CSI’s premises and the rules were 

enforced through disciplinary measures, including 

termination, and while the drive itself benefitted both the 

employee and employer, the rules—including bans on 

speeding, smoking, drinking, wearing headphones, and other 

activities—benefitted the employer.

California cases concerning off-premises transportation 

are instructional here. Employers “control” drive time by 

requiring workers to use employer-provided transportation. 

Compare Morillion, 995 P.2d at 146–47, with Hernandez, 

239 Cal. Rptr. 3d at 856–59 and Overton, 38 Cal. Rptr. 3d at 

697–99; see also Frlekin, 457 P.3d at 534 (“[I]n the 

commute context, an employer’s interest generally is limited 

to the employee’s timely arrival. . . . [U]nless the employer 

compels the employee to use a certain kind of transportation 

or employer-provided transportation, it would be, without

more, unreasonable to require the employer to pay for travel

time.”). In Morillion, for example, the time spent waiting 

for and riding on the employer-mandated buses constituted 

compensable “hours worked” under the relevant wage order 

because the employer exerted control by “determining when, 

where, and how [workers] are to travel.” 995 P.2d at 147. 
16 HUERTA V. CSI ELEC. CONTRACTORS

The employer in Huerta’s case did not exert a similar time 

of control: Huerta used his own vehicle, and other workers 

carpooled with colleagues or took a bus, and the rules he had 

to follow fundamentally differ from the requirement to ride 

in an employer’s vehicle.4

 On the other hand, this is not an 

off-site transportation case: Huerta was required to be on the 

employer’s premises while he was traveling from the Gate 

to the parking lot, a fact that weighs in favor of the 

conclusion that he was under his employer’s control. See 

Frlekin, 457 P.3d at 531 (indicating that employees were 

under the employer’s control while awaiting an exit search 

in part because the employer “confines its employees to the 

premises as they wait for an undergo an exit search”); cf. 

Bono Enters., Inc. v. Bradshaw, 38 Cal. Rptr. 2d 549, 553–

54 (Cal. App. 1995), disapproved on other grounds by 

Tidewater Marine Western, Inc. v. Bradshaw, 927 P.2d 296 

(Cal. 1996) (“When 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.”).

California intermediate courts distinguish Morillion and 

employer-mandated off-site transportation from employerprovided optional off-site transportation, where employers 

do not exert sufficient control because workers have choices 

in their commutes. See Hernandez, 239 Cal. Rptr. 3d at 856–

59; Overton, 38 Cal. Rptr. 3d at 697–99. Huerta argues CSI 

controlled the drive time between the Security Gate and the 

employee parking lots because he was on the employer’s 

4 Some of the rules impose restrictions similar to ordinary traffic 

laws, which make the drive resemble non-compensable commute time 

more than employer-mandated travel. See Frlekin, 457 P.3d at 534 

(“Commuting . . . is not generally compensable.”).
HUERTA V. CSI ELEC. CONTRACTORS 17

premises, and therefore could not run errands or pick up his 

children. See Morillion, 995 P.2d at 146. But this argument 

is undermined by Hernandez, which determined that 

employers did not control drive time in optional employerprovided vehicles even when workers were required to carry 

the employer’s equipment and were not permitted to run 

errands or make other stops. 239 Cal. Rptr. 3d at 858–59. 

Indeed, while the Hernandez workers were fully precluded 

from non-work-related errands on their entire commute, 

Huerta could have done those things on the rest of his 

commute aside from the stretch between the Security Gate 

and the employee parking lots—but Huerta is claiming only 

that time spent on the stretch between the Gate and the lot 

qualifies as “hours worked.”

In Overton, employees who drove to work were required 

to park in lots far from the job site, but the time spent on 

optional shuttles from the parking lot to the job site—time 

apparently not spent on the employer’s premises—was not 

compensable, as personally driving to work was voluntary 

(vanpools and buses were available) and use of the shuttles 

was not mandatory (they could walk or bike). 38 Cal. Rptr. 

3d at 699–701. The facts here distinguishable because the 

entire travel time occurs on the employer’s premises and 

Huerta had no option other than to travel on the employer’s 

premises from the Security Gate to the parking lot of the job 

site. Even if the arrival to the lot in Overton parallels 

Huerta’s arrival to the Security Gate as the first entry onto 

the employer’s premises, in Huerta’s case he had no option 

other than arriving at the Gate, whereas the Overton 

employees could arrive directly at their jobsite entrance. See 

id. at 695. For the same reason, the travel time between the 

lot and jobsite in Overton is distinguishable from the travel 

time between the Gate and jobsite here. And the Overton 

court rejected the suggestion to move the time clock to 
18 HUERTA V. CSI ELEC. CONTRACTORS

badge-in at the parking lot as it would result in the employer 

“paying unnecessary compensation to many of its 

employees,” including those that walked or biked from the 

lot to the site. Id. at 701. But even though the travel from 

the parking lot to the job site was not compensable given that 

an employee could choose to not make the trip, Overton does 

not preclude Huerta’s similar drive time claim because he 

had no choice but to drive from the Gate to his jobsite.

Yet the California Supreme Court has not decided the 

specific issue of 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” 

under the control prong of the wage order, so we are unsure 

if the time is compensable. Because interpreting the wage 

hour to favor either party could significantly increase or 

decrease California employers’ liability for compensating 

workers when they are on an employer’s premises, we 

respectfully certify this question for review.

2. “Employer-Mandated Travel” and “First Location” 

Under Section 5

Wage Order No. 16 Section 5(A) states, “All employermandated 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 . . . .”

The California Supreme Court has never defined “first 

location” or “employer-mandated travel” in Wage Order No. 

16 Section 5and it appears this is the only wage order that 

includes this travel language. Therefore, we do not know if 

the Security Gate is the “first location” in this case. The 

California definition of “compulsory travel time” from 

Morillion may apply to and define “employer-mandated 
HUERTA V. CSI ELEC. CONTRACTORS 19

travel” in Wage Order No. 16, as the legislative history of 

the wage order cited Morillion.

5 Also, the hearing 

discussing the passage of the wage order explicitly 

referenced “protect[ing] worker[s] from being seesawed 

between job sites . . . where they may be told to report to a 

particular job site, and then, after performing particular work 

there, being told to go to a secondary job site, and as a result, 

not being paid for the employer-controlled travel in 

between,” and also protecting workers who “have to park 

off-site and be bused into the job sites,” both of which are 

encompassed by the Morillion definition.6 But as discussed 

above, it is not entirely clear that Morillion precludes 

compensating workers for the drive time, wait time, and 

badging time, so defining “first location” and/or “employermandated travel” could be dispositive for this issue.

Huerta specifically contends the Security Gate was the 

“first location” the employer required him to be, and 

therefore the travel to and from that location was employermandated, not because he had to badge in but rather because 

managers told workers they had to go through the Gate 

before starting their shifts. It is true that there was at least a 

de facto required arrival time to be at the 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 

5 Statement As to the Basis for Wage Order No. 16 Regarding 

Certain On-Site Occupations in the Construction, Drilling, Mining, and 

Logging Industries, at 10. https://www.dir.ca.gov/iwc/StatementAsTo

TheBasisWageorder16.pdf.

6 Public Hearing, Department of Industrial Relations Industrial 

Welfare Commission, Sept. 21, 2000 (statements of Scott Wetch and 

Jerry Haft), https://www.dir.ca.gov/iwc/PUBHRG9211.htm.
20 HUERTA V. CSI ELEC. CONTRACTORS

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, 

see Frlekin, 457 P.3d at 534, during which there are always 

de facto required arrival times for locations unrelated to the 

employer. For example, a worker might have to arrive at a 

public toll plaza by 7:00 a.m. if she hopes to miss traffic and 

arrive at the office by 7:30 a.m., but we do not think that 

means the commute from the toll plaza to the office is 

compensable. By contrast, Huerta might have had to arrive 

at such a public toll plaza by 7:00 a.m. in order to arrive at 

the employer’s premises—i.e., the Security Gate—by 

7:30 a.m. and at his worksite by 8:00 a.m. And Overton cuts 

against Huerta’s theory of liability because, while the 

opinion did not discuss Section 5(A), the California Court of 

Appeal did not seem to think the travel from the parking lot 

to the job site was compensable merely because an employee 

had to make the trip once parked. On the other hand, 

employees in Overton had the option of reporting directly to 

the employee entrance, while Huerta had to report to the 

Security Gate.

But because no court has specifically defined Section 

5(A), California courts broadly construe wage orders to 

protect workers, see Mendiola, 340 P.3d at 359, and this 

question would be dispositive if decided in Huerta’s favor, 

we respectfully request that the California Supreme Court 

answer this certified question.
HUERTA V. CSI ELEC. CONTRACTORS 21

C. Meal Periods

Finally, no controlling California precedent has 

answered the certified question of whether Wage Order No. 

16 or California Labor Code Section 1194 requires 

compensating workers for time spent on the employer’s 

premises, when workers are prohibited from leaving but not 

required to engage in employer-mandated activities, and that 

time is designated as an unpaid “meal period” under a 

qualifying collective bargaining agreement. The answer to 

this question would dispositively address Huerta’s meal 

period claim.

California law requires employers to pay workers 

minimum wage, “[n]otwithstanding any agreement to work 

for a lesser wage.” Cal. Lab. Code § 1194; see also Cal. Lab. 

Code § 1182.12; IWC Wage Order 16 §§ 2, 4 (requiring 

minimum wage for all “hours worked”). California law also 

requires providing workers thirty-minute meal periods, 

subject to certain exceptions. Cal. Lab. Code § 512(a). 

California courts have stated the Labor Code requires that 

the meal periods be paid if work is required, which includes 

when workers cannot leave the employer’s premises (i.e. an 

on-duty meal period). See, e.g., Brinker Rest. Corp. v. 

Super. Ct., 273 P.3d 513, 532–35 (Cal. 2012) (discussing the 

historical legal basis for off-duty meal period requirements, 

including ensuring employees “are free to leave the 

premises”); Bono Enters., Inc., 38 Cal. Rptr. 2d at 556 

(supporting the interpretation of the wage order to require 

“an employer to pay an employee for meal periods during 

which the employee is precluded from leaving the 

worksite”); Madera Police Officers Ass’n v. City of Madera, 

682 P.2d 1087, 1088 (Cal. 1984) (analyzing whether meal 

periods were so circumscribed as to constitute “hours 

worked”).
22 HUERTA V. CSI ELEC. CONTRACTORS

But Labor Code Sections 512(e) and (f) expressly 

exempt from meal period requirements “employee[s] 

employed in a construction occupation” if “covered by a 

valid collective bargaining agreement” that:

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 

regularly hourly rate of pay of not less than 

30 percent more than the state minimum 

wage rate.

Those conditions are met here.

Paralleling the Labor Code requirements, Wage Order 

No. 16 Sections 10(A) and (D) mandate thirty-minute meal 

periods, which must be paid and counted as time worked 

unless the worker “is relieved of all duty.” Section 10(E) 

further states that Sections 10(A) and (D):

shall not apply to any employee covered by a 

valid 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.

These conditions are encompassed by those in the Labor 

Code Section 512(e), and also met here.
HUERTA V. CSI ELEC. CONTRACTORS 23

Referencing Labor Code Sections 512(e) and (f), the 

California Court of Appeal has held employers and unionrepresented employees covered by valid CBAs may bargain 

over (and perhaps bargain away) the right to off-duty meal 

periods, Araquistain v. Pac. Gas & Elec. Co., 176 Cal. Rptr. 

3d 620, 628 (Ct. App. 2014), because of the “express 

statutory exemption[s] for CBA-covered employees relating 

to the . . . right,” Gutierrez v. Brand Energy Servs. of Cal., 

Inc., 264 Cal. Rptr. 3d 173, 183 (Ct. App. 2020) (citing 

Araquistain, 176 Cal. Rptr. 3d at 628; Vranish v. Exxon 

Mobil Corp., 166 Cal. Rptr. 3d 845, 848–50 (Ct. App. 2014) 

(permitting union-represented employees covered by valid 

CBAs to bargain over overtime rights)). But the Gutierrez

court specifically distinguished between minimum wage 

rights as compared to off-duty meal period and overtime 

rights, because “[t]here is no equivalent statutory language” 

permitting bargaining over minimum wage rights for CBAcovered workers. 264 Cal. Rptr. 3d at 183.

Thus, while it is clear that union-represented employees 

covered by a valid CBA may bargain over meal period 

rights, it is less certain if they may bargain away the right 

entirely, and it is unclear if they may bargain away their right 

to be paid minimum wage for “on-duty” meal periods where 

they are prohibited from leaving the employer’s premises. 

Huerta contends state law minimum wage protections apply 

to the time he spent on CSI’s premises during time 

designated as an unpaid meal period under his CBA because 

he was prohibited from leaving and so was on duty. But CSI 

asserts this “minimum wage” claim is merely a meal period 

claim in disguise, and so properly exempted under Labor 

Code Sections 512(e) and (f) and Wage Order No. 16 

Section 10(E).
24 HUERTA V. CSI ELEC. CONTRACTORS

Whether minimum wage laws proscribe, permit, or 

otherwise affect unpaid, on-duty meal periods in CBAs 

under Wage Order No. 16 and Labor Code Sections 512 and 

1194, such that a CBA can relinquish the right to minimum 

wage compensation for on-duty meal periods, has not yet 

been addressed by California courts. And while the record 

does not show how many workers are subject to a CBA that 

provides for unpaid meal periods while prohibiting workers 

from leaving the employer’s premises, the answer to this 

question will no doubt affect many union-represented 

workers across California. Thus, we respectfully submit this 

question to the California Supreme Court for review.

V. Accompanying Materials

The clerk of this court is hereby directed to file in the 

Supreme Court of California, under official seal of the 

United States Court of Appeals for the Ninth Circuit, copies 

of all relevant briefs and excerpts of the record, and an 

original and ten copies of this order and request for 

certification, along with a certification of service on the 

parties, pursuant to California Rule of Court 8.548(c)–(d).

This case is withdrawn from submission. Further 

proceedings before us are stayed pending final action by the 

Supreme Court of California. The Clerk is directed to

administratively close this docket, pending further order. 

The parties shall notify the clerk of this court within seven 

days after the Supreme Court of California accepts or rejects 

certification, and again within seven days if that Court 

accepts certification and subsequently renders an opinion. 

The panel retains jurisdiction over further proceedings.

IT IS SO ORDERED.