United States: 9th Circuit Kicks California Security Check Case Back To Lower Court

Last Updated: July 4 2019
Article by Kevonna Ahmad and Megan E. Walker

In a unanimous decision late last week, the 9th Circuit Court of Appeals resuscitated class claims against retail giants Nike and Converse that allege employees are owed compensation for time spent undergoing security checks when exiting the retail stores (Rodriguez v. Nike Retail Stores, Inc.; Chavez v. Converse, Inc.). On Friday June 28, the federal appellate court held that the lower district court – which had ruled in favor of the employers by applying the federal de minimis doctrine – needs to conduct a do-over to comply with a recent California Supreme Court decision that all but eliminates the de minimis doctrine based on the facts before the high court. The bar set by the courts is high; California employers may now need to pole vault in order to scale it.

The Baggage That Comes With Conducting Business In California

As a loss prevention measure, many retailers require their store employees to undergo a "bag check" or security check whenever they leave the store to confirm that are not taking any merchandise. But some employees have complained that they should be paid for the time they are required to spend during these checks, and these disputes have often ended up in court. California retail employers have seen the bag check battle waged several times over the past few years. 

First, in September 2015, the U.S. Supreme Court held in Busk v. Integrity Staffing that post-shift security bag checks are not compensable time under the federal Fair Labor Standards Act (FLSA). This was only half of the equation for California employers, though, because the California Labor Code is stricter than the FLSA in many ways.

However, in November 2015, a federal court dismissed claims brought by a class of Apple retail store employees under California law. In Frlekin v. Apple, Inc., the court applied California precedent to examine the element of control. The court found that, because Apple only required employees to undergo bag checks when they made the choice to bring a personal bag into the store, Apple did not exercise control over the employees during their bag checks and that the time therefore was not compensable.  The question on whether that was a correct interpretation is currently pending before the California Supreme Court.

Nike And Converse Have To Sidestep Previous Successful Arguments

The arguments that succeeded for employers in Busk and Frlekin were not available to the retail employers involved in this specific dispute. That's because the class overtime claims arose under California law, not the FLSA; and the stores had a security policy that applied to all employees, not a bag check policy for only those who chose to bring bags to work. So instead, they turned to a concept from federal law that had been applied favorably in California cases in the past – the de minimis doctrine, which is based on the common-sense principle that an employer cannot be expected to capture all working time ("the law does not concern itself with trifles"). 

After all, according to the employers' expert, the average exit inspection at Nike took between 16.9 and 20.2 seconds. 81.4 percent of inspections took less than 30 seconds, and 97.5 percent took less than two minutes. Some inspections, however, lasted up to several minutes. Nevertheless, under the de minimis doctrine, the lower district court found that even those scenarios were trivial and ruled in favor of the employers in September 2017.

But the California Supreme Court torpedoed employers' hopes that the de minimis doctrine would save them from capturing time spent on employee security checks. In July 2018, the state's highest court held in Troester v. Starbucks Corp. (1) that California's wage and hour statutes or regulations had not adopted the federal de minimis doctrine as applied to the FLSA and (2) that the general concept of a de minimis doctrine did not apply to required store closing procedures that regularly took between six and 10 minutes. However, it left open whether a California de minimis principle may ever apply. Specifically, the high court stated, "we do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded."

The California Supreme Court Chucks The Lower Court's De Minimis-Based Decision

On appeal, the employers argued that the trial court was right to dismiss the employees' claims even under the standard later established in Troester, since the amounts of time at issue were so insignificant – a matter of seconds – that a California version of the de minimis doctrine should apply. Given the facts presented by the employers in support of summary judgment, the 9th Circuit disagreed.

The court was not convinced by the employers' argument that the de minimis threshold should simply be one minute instead of 10. The 9th Circuit found that such an interpretation would "read far too much into Troester's passing mention of 'minutes'" and was inconsistent with Troester's reasoning. Further, the 9th Circuit expressed doubt that the Troester ruling would have come out differently had the tasks the Starbucks workers were required to perform "taken only 59 seconds per day." 

The 9th Circuit also reiterated employer's obligation under Troester to show administrative difficulty under alternative systems. The three-judge panel rejected the lower court's reasoning that the employers needed only show that it would be administratively difficult to record time using its existing time-keeping system. In doing so, it posited that the employees' proposed alternatives of adding fixed amounts of time to employees' paychecks, or having employees undergo inspections at the back of the store before clocking out, were viable solutions.

Accordingly, the 9th Circuit concluded that it could not affirm the lower court's grant of summary judgment for the employers, sending the issue back to the lower district court to revisit its decisions under the standard in Troester instead of the federal de minimis doctrine. 

Should California Retail Employers Just Pay It?

The 9th Circuit's decision makes clear that you must clear a very high hurdle if you hope to avoid measuring and paying employees for time spent during mandatory security checks. Accordingly, if you wish to continue conducting security exit checks, you should revisit your security check policies and practices to ensure compliance with the law. You should consider the following:

  • Is it possible to move time clocks near store exits and conduct security checks before employees clock out?
  • May bag checks be conducted by an employee who is not subject to the interruptions inherent in managing a retail establishment, such as a security or loss prevention officer?
  • Would an alternative method of clocking in and out, such a cell phone application or paper time sheets, be feasible in your business?

Additionally, while the 9th Circuit entertained the employee's proposal to simply add some amount of time to every employee's workday to account for time spent on the security checks, we caution you to seek legal counsel to determine what compensation strategies would best satisfy a California employer's obligation to pay for all hours worked.

We will continue to monitor further developments and provide updates on this and other labor and employment issues affecting California employers. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions