The “Hours Worked” Standard

Control, or suffer-or-permit

The wage order's definition of "hours worked" has two independent prongs, and recognizing their independence is the foundation of the entire category. Under Wage Order No. 5, which governs the restaurant industry, hours worked means the time during which an employee is subject to the control of the employer, and it includes all the time the employee is suffered or permitted to work, whether or not required to do so. The conjunction is doing important work: the definition reaches time that satisfies either condition, not only time that satisfies both. Time under the employer's control is hours worked even if the employee is not actively producing — waiting, standing by, undergoing a required check. And time the employer suffers or permits the employee to work is hours worked even if the employer did not require it and even if the employee performed it off the clock. The standard is therefore considerably broader than an intuitive "time spent doing required tasks while clocked in," and most off-the-clock exposure arises from that breadth.

The crucial corollary, which the rest of the category builds on, is that the time clock does not define compensable time — the two prongs do. An employee can be off the clock and still working hours that must be paid, because the punches record when the employee was logged in, not when the employee was under the employer's control or performing work the employer permitted. This is why "off-the-clock" work is a coherent category of liability at all: the law measures the obligation by control and work, and the clock is merely an imperfect, employer-administered record of it. When the two diverge — when the employee is controlled or working but not clocked in — the hours are owed, and the divergence is the exposure. The sections below develop each prong, apply them to the tasks restaurants generate, and draw out the consequence that hours worked must be both recorded and paid.

Subject to the employer's control

The first prong asks whether the employee is subject to the employer's control, and it captures time in which the employer restricts the employee's freedom even when no productive work is being performed. The paradigm is Frlekin v. Apple, in which the Supreme Court held that time spent by employees undergoing employer-required exit and bag searches was compensable hours worked: the employees were subject to the employer's control during the searches — they could not leave, had to submit to the procedure, and were acting for the employer's benefit — and that control made the time compensable even though the employees were not serving customers or preparing food. The control prong thus reaches waiting time, mandatory checks, required meetings, and on-premises standby, because the touchstone is the employer's restriction of the employee's activity, not the productivity of the activity itself.

Applying the control prong is a practical inquiry into the degree and nature of the employer's restriction, and several restaurant situations sit squarely within it. A required bag check or pat-down at the end of a shift is controlled time under Frlekin. A mandatory pre-shift lineup, a required all-hands meeting, or a compulsory training session is controlled time, because attendance is required and the employer directs the employee's activity throughout. Time spent waiting on the premises at the employer's direction — held past clock-out until a manager completes a count, or required to remain available — is controlled time. What the prong does not reach is genuinely unrestricted time during which the employee is free to use the time for the employee's own purposes, even if spent on the premises: an employee who chooses to arrive early and relax in the break room, free to leave and not performing or awaiting any task, is not under the employer's control. The line is the employer's restriction of the employee's freedom, and the restaurant tasks that involve required attendance, required procedures, or required waiting fall on the compensable side of it.

Control reaches time the employer restricts — waiting, checks, required meetings — even when no food is cooked and no table is served. Frlekin's bag check is the model.

Work the employer knows or should know about

The second prong reaches all the time the employee is suffered or permitted to work, whether or not required, and it captures a different gap than the control prong does. Where control looks at restriction, suffer-or-permit looks at work the employer allows to happen — work the employer knows about, or in the exercise of reasonable diligence should know about, and does not prevent. The phrase is deliberately broad: it does not require that the employer ordered the work, only that the employer suffered or permitted it. An employer that knows its servers routinely stay after clock-out to finish side work, or that its cooks arrive early to begin prep, and that accepts the benefit of that work without stopping it, has suffered or permitted the work and owes for the time, even though no manager directed any particular employee to do it on any particular day. The prong thus reaches the recurring, tolerated, off-the-clock work that is endemic to restaurant operations.

The operative limit on the suffer-or-permit prong is the employer's knowledge, actual or constructive, and it is a limit that diligent employers can rarely satisfy in the off-the-clock setting. An employer is not liable for work it neither knew nor reasonably should have known about — truly clandestine work an employee performs against instructions and conceals. But the standard is constructive knowledge, not actual knowledge alone, so an employer cannot insulate itself by declining to look: if the off-the-clock work is a regular, observable feature of the operation — the closing routine that obviously cannot be completed within the clocked time, the side work everyone performs after punching out — the employer should know about it, and a policy on paper prohibiting off-the-clock work does not defeat constructive knowledge of work the employer in fact permits. This is why the prohibition-on-paper defense usually fails: the question is not whether the employer forbade the work in a handbook but whether the employer suffered or permitted it in practice, and a routine the employer benefits from and does not actually stop is permitted work regardless of the policy. The diligence the prong demands is operational, not documentary.

The shift's edges, tested against the prongs

The recurring restaurant tasks at the edges of the shift each resolve under one prong or the other, and walking through them shows how little of the marginal time escapes the definition. Pre-shift setup — the cook firing the line, the server stocking a station, the host arranging the floor — is suffered-or-permitted work the employer accepts and often directs, and where directed it is also controlled time. Post-shift cleanup and side work — breaking down stations, rolling silverware, restocking, cashing out — is suffered-or-permitted work the employer requires or tolerates after clock-out. The closing routine — running reports, securing the premises, the end-of-night procedure — is both controlled and permitted work. Required bag checks and security procedures are controlled time under Frlekin. Mandatory meetings and trainings are controlled time. After-hours communications — responding to a manager's text about the schedule or a coverage request — are permitted work where they recur, and increasingly litigated under the control prong as well.

The pattern across these tasks is that the time clock systematically understates the controlled-and-permitted workday in a restaurant, because the operation's rhythm pushes work to the margins where the punches do not capture it. The clock-in is calibrated to the shift's nominal start, but the work begins when the employee starts setting up; the clock-out is calibrated to the nominal end, but the work continues through cleanup and closing. The result is that a faithful application of the hours-worked standard will almost always find compensable time outside the recorded shift unless the employer has deliberately structured timekeeping to capture the margins — having employees clock in before setup and out after cleanup, recording meeting and bag-check time, and accounting for the closing routine. The standard does not bend to operational convenience; it measures the controlled-and-permitted workday, and the restaurant that records only the nominal shift has, by the standard's own terms, failed to pay for hours worked. The classifier below tests the recurring cases against the prongs.

Each task against the two prongs

Each example is tested against the control and suffer-or-permit prongs. Select a scenario to see whether the time is compensable and which prong governs:

Fig. 1. The hours-worked analysis under Wage Order No. 5, § 2 and Frlekin (2020) 8 Cal.5th 1038. Either prong suffices; the time clock does not define compensable time. Mere unrestricted presence, without control or work, is not hours worked. Outcomes are fact-specific.

Recorded, paid, and carried through

Once time qualifies as hours worked under either prong, two obligations follow, and they connect this category to the rest of the section. The first is that the time must be paid — at no less than the minimum wage, and at the overtime rate where the hours, including the previously uncaptured time, push past eight in a day or forty in a week. This is the wage-floor consequence, and it is owed regardless of the employer's intent, which is why the off-the-clock exposure cannot be defended on good-faith grounds in the way a penalty can: the hours were worked, so the wages are owed. The second obligation is that the time must be recorded — the employer's duty to keep accurate records of hours worked extends to all compensable time, so hours worked off the clock are hours the employer was obligated to capture and did not. The recordkeeping consequence is developed on a later page, but its significance here is that the failure to record compensable time is itself a violation and, as the proof rules show, an evidentiary disadvantage.

The broader consequence is that the hours-worked standard is the antecedent on which the category's other exposures depend, so getting it right is the necessary first step. The unpaid hours feed the regular-rate computation, because they increase both the total hours and, where they cross the overtime thresholds, the overtime owed — so off-the-clock time is also a regular-rate problem. They understate the wage statement, because hours worked is a required statement item and uncaptured time makes the reported total wrong — so off-the-clock time is also a wage-statement problem. And the uncaptured time supports a waiting-time penalty at separation, because wages for hours worked that were never paid are wages that remain due. The hours-worked standard, in other words, is not a self-contained question; it is the determination of how much time was actually worked, which then propagates into the rate, the statement, and the penalty regime. The category's remaining pages develop the forms this time takes, the doctrines that govern small increments and rounding, the proof rules, and the exposure — all of which presuppose the standard this page sets.

Apply the prongs honestly, and structure timekeeping to capture the workday