I often blog about what is and is not working time under the FLSA. Many class actions have been brought on these issues, with some focused on time waiting for security checks. A class of retail workers working for Apple Inc. have sought a ruling that the time they spend having their bags checked at work was working time because they were under their employer's control during these mandated security screenings. The case is entitled Frlekin et al. v. Apple Inc., and was filed in federal court in the Northern District of California.
The plaintiffs argued that the time was compensable because it was required and, most importantly, they could be disciplined if they did not comply with the screenings. The defendants countered by asserting that the screenings were not "required" because the employees were not required to bring backpacks, purses and iPhones to work, which were the items being screened. The plaintiffs countered that by asserting that this was not "an activity that's done for the employees' benefit." Their lawyer stated that "you can't tell an employee how to spend their time and not compensate them for that time."
The defendants argued that it was insufficient to claim that the employees were under Apple's control when they went through the security screenings, but rather the focus should be on whether the plaintiffs were required to bring items to work. The defendants claimed that bringing these items to work was only for the employees' convenience and therefore fell outside the realm of FLSA work time, which does require some element of compulsion.
The Court ruled in favor of Apple. The Court noted that just because the bag checks solely benefited Apple and were required did not mean that the time was compensable; the employees could have simply not brought the bags to work. The Court ruled that "plaintiffs could all freely choose not to bring bags to work, thereby avoiding Apple's restrictions during exit searches. That free choice is fatal to their claims." The Court also found that "Apple's searches had no relationship to plaintiffs' job responsibilities; they were peripheral activities relating to Apple's theft policies." The Judge analogized the time waiting for a bag check, simply because the employer benefits by the activity, to the workers being paid for their commute to work because an employer benefits "by physically having its employees on premises."
The Takeaway
When I give presentations on working time, I stress that there must be an integral connection of the preliminary activity to the primary/work activity for the time to be compensable. Also, I stress that where there is an element of employer compulsion, this tilts the scales heavily in favor of the time being deemed working time. Here, the Court concluded that the activity was not integrally connected.
The freedom of choice was the key, as the choice not to bring a bag ostensibly allowed the worker to pass right through and not "lose" any time in the security clearance process. In scenarios where preliminary time is compensable, the employee cannot do his primary job without engaging in the preliminary work, such as a cashier who needs to balance out their cash drawer before commencing (or finishing) work. Here, that was not the case. Although there was employer compulsion, that did not trump the lack of connection to the primary work being done.
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