Apple Inc. recently convinced a California federal district court to dismiss a certified class action alleging that Apple had a legal duty to pay store workers for time spent on bag checks at the end of shifts.
In Frlekin v. Apple, the named plaintiffs represented a class of all hourly Apple retail store employees who underwent exit searches pursuant to Apple's written bag-search and technology-card search policies, which allowed the retailer to examine employees' backpacks, purses, briefcases and devices for theft. Employees were not paid for the time it took to queue up for and to undergo the searches, and the plaintiffs sued claiming that this was compensable work time.
In 2014, following the U.S. Supreme Court's decision in Integrity Staffing Solutions, Inc. v. Busk, which held that time spent undergoing mandatory security screenings was not compensable under the Fair Labor Standards Act, the federal claims were dismissed. This left the district court with one key question: did the bag and technology searches constitute "hours worked" under the applicable California Wage Order 4?
Since the California Supreme Court has held that "hours worked" can mean either time during which an employee is subject to the control of the employer or time the employee is suffered or permitted to work, the district court examined the application of both definitions to the Apple searches. The control theory requires proving both that the employer restrains the employee's action during the activity and that the employee has no choice but to participate in the activity. Since Apple employees have a choice as to whether or not they will brings bags and phones to work with them, the court concluded that the searches were optional – meaning the employees were not subject to Apple's control when they underwent them. Specifically, because Apple could have prohibited employees from bringing personal items to work, but instead "took a milder approach to theft prevention and offered its employees the option to bring bags and personal Apple devices into a store subject to the condition that such items must be searched," employees could freely choose to avoid Apple's control by declining to bring a bag. Furthermore, the employees were not "suffered or permitted to work" during the searches, since the searches had no relationship to plaintiffs' job responsibilities; they were peripheral activities relating to Apple's theft policies. As such, the court dismissed the lawsuit in favor of Apple.
Different facts, i.e., a scenario where workers are compelled to bring to work brief cases, large bags, heavy coats or other items where goods could be placed, could warrant a different outcome. Nevertheless, this is a helpful ruling for employers, and not merely those in the retail space, but for all employers who may impose end of shift security measures that apply to hourly workers.
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