Court Holds California Law Does Not Require Apple to Pay Employees for Bag Checks

Last week a federal district judge in California granted summary judgment to Apple Inc. in a class action brought by employees who claimed they were owed unpaid wages under California law for post-shift security screenings, commonly referred to as “bag checks.” In an effort to deter employee theft of merchandise, Apple applied its bag check policy to employees who chose to bring bags, packages or Apple products to work. The court held the time was not compensable because employees could easily avoid bag checks by not bringing to work bags or other items included within the policy. The case is Frlekin v. Apple Inc., No. C 13-03451 WHA (lead) (USDC, N.D. Cal., Nov. 7, 2015).

The employees filed separate class actions (later consolidated) in July 2013, asserting claims for unpaid wages under the Fair Labor Standards Act (FLSA) and the laws of various states, including California. All claims other than those brought under California law were dismissed after the United States Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), which held that time spent during mandatory security screenings was not compensable under the FLSA. The other state laws at issue in the case all mirrored the FLSA, so the case proceeded solely under California law. Earlier this year the district court certified a class consisting of employees who worked at Apple retail stores in California.

In last week’s decision, U.S. District Judge William Alsup denied the employees’ motion for summary judgment and granted Apple’s. Judge Alsup began his analysis by noting that California’s broad definition of “hours worked” includes both “the time during which an employer is subject to the control of an employer” and “the time an employee is suffered or permitted to work, whether or not required to do so.”

Reviewing a line of cases interpreting the “control” theory, the court concluded “the activity must be mandatory and not optional at the discretion of the worker.” In the case of Apple workers, the mandatory element was not met because any Apple worker could avoid bag checks by choosing not to bring to work any bag or other item subject to Apple’s search policy.

The court also found the time the employees spent waiting for or undergoing bag checks was not time they were “suffered or permitted to work, because the bag checks bore no relationship to the employees’ job responsibilities; they were merely waiting while managers or security guards conducted the searches.

While this case is a welcome development for employers, it is not likely to be the last word on the subject of post-shift security screenings. The employees may appeal, and even if the court’s decision stands it will not be binding on other courts, including California state courts. The decision will not be helpful to employers that require all employees to undergo security screenings, regardless of whether they bring to work bags, packages, or other item subject to search. Still, the decision will likely dampen the enthusiasm of the plaintiffs’ bar for filing class actions based on the theory that any time employees spend in security screenings automatically constitutes “hours worked” under California law.

Aaron BuckleyPaul, Plevin, Sullivan & Connaughton LLP – San Diego, CA

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