September 4, 2020
Employers beware – if you have a policy requiring employees to undergo bag checks and exit searches when leaving the premises, you must compensate them for that time.
Earlier this year, in Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, the California Supreme Court held that the time spent by Apple employees waiting for and undergoing exit bag searches was compensable. This was true even though Apple didn’t require employees to bring bags to work, and they brought such items purely for their personal convenience. The searches in the case typically took between 5 and 20 minutes, though sometimes up to 45 minutes when the stores were busy and managers and security personnel were not immediately available.
The central issue was whether this time counted as “hours worked,” which, under California law, includes 1) time when an employee is subject to an employer’s “control,” and 2) time when an employee is “suffered or permitted” to work.
The court specifically focused on the “control” clause, and noted that employees subject to the control of the employer don’t necessarily have to be working to be owed compensation. To determine whether an employee is subject to the employer’s control, certain factors are considered, such as whether an activity is required, the location of the activity, the degree of the employer’s control, whether the activity primarily benefits the employer or employee, and whether the activity is enforced through disciplinary measures.
The California Supreme Court found that the employees were under Apple’s “control” when undergoing bag checks because employees were required to find a security guard to conduct the search, could not leave the premises during that time, and were subject to discipline if they didn’t comply. The bag checks were primarily for Apple’s benefit, since they served to detect and deter theft. Also, even though the bag search wasn’t technically required (as employees could choose not to bring bags to work), the search was required as a practical matter because most employees routinely bring personal items to work, such as purses and phones.
This holding shows once again that California law differs greatly from federal law in the employment context, as it is in direct contrast to the U.S. Supreme Court’s 2014 decision in Integrity Staffing Solutions, Inc., v. Busk (which held that time spent awaiting bag checks was not compensable under the federal Fair Labor Standards Act).
Employers with bag check and exit search policies should make sure their procedures comply with this decision, and should ensure they do not place any other off-the-clock control over employee activities which may require compensation.
Notably, this decision is retroactive, meaning employers may be liable for unpaid wages dating back several years before this decision was even made, even if they do revise bag check policies going forward.
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.