Ninth Circuit Seeks Clarity On Whether Wages Are Owed For Time Spent Waiting For Security Screening Featured

  18 August 2017

The Ninth Circuit Court of Appeal has asked the California Supreme Court to answer the question of whether “time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?

As the Ninth Circuit noted, “no clear controlling California precedent exists.” ( Frlekin v. Apple, Inc. , 2017 BL 286498, 9th Cir., No. 15-17382, order certifying question to California Supreme Court 8/16/17 ). Amanda Frlekin, Taylor Kalin, Aaron Gregoroff, Seth Dowling, and Debra Speicher (“Plaintiffs”) brought this wage-and-hour class action on behalf of current and former non-exempt employees who have worked in Defendant Apple, Inc.’s retail stores in California since July 25, 2009. Plaintiffs seek compensation for time spent waiting for and undergoing exit searches pursuant to Defendant’s “Employee Package and Bag Searches” policy (the “Policy”), which states, in part:

Employee Package and Bag Searches

All personal packages and bags must be checked by a manager or security before leaving the store. 

General Overview

All employees, including managers and Market Support employees, are subject to personal package and bag searches. Personal technology must be verified against your Personal Technology Card (see section in this document) during all bag searches.

Failure to comply with this policy may lead to disciplinary action, up to and including termination.

Do

• Find a manager or member of the security team (where applicable) to search your bags and packages before leaving the store.

Do Not

  • Do not leave the store prior to having your personal package or back [sic] searched by a member of management or the security team (where applicable).
  • Do not have personal packages shipped to the store. In the event that a personal package is in the store, for any reason, a member of management or security (where applicable) must search that package prior to it leaving the store premises.

Employees receive no compensation for the time spent waiting for and undergoing exit searches, because they must clock out before undergoing a search. Employees who fail to comply with the Policy are subject to disciplinary action, up to and including termination.

On July 16, 2015, the district court certified a class defined as “all Apple California non-exempt employees who were subject to the bag-search policy from July 25, 2009, to the present.” Because of concerns that individual issues regarding the different reasons why employees brought bags to work, “ranging from personal convenience to necessity,” would predominate in a class-wide adjudication, the district court (with Plaintiffs’ consent) made clear in its certification order that “bag searches” would “be adjudicated as compensable or not based on the most common scenario, that is, an employee who voluntarily brought a bag to work purely for personal convenience.”

On November 7, 2015, the district court granted Defendant’s motion for summary judgment and denied Plaintiffs’ motion for summary judgment. The district court ruled that time spent by class members waiting for and undergoing exit searches pursuant to Apple’s policy is not compensable as “hours worked” under California law because such time was neither “subject to the control” of the employer nor time during which class members were “suffered or permitted to work.” Plaintiffs appealed and the issue is now before the California Supreme Court. Read more here.

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