Bad Apple: Employee Searches are Compensable Time

Attorney Tal Burnovski Yeyni

Tal Burnovski Yeyni | Associate

February 15, 2020
one and one half red apples

The California Supreme Court clarified in a highly anticipated decision, that time spent waiting for and undergoing mandatory exit searches of personal items is considered compensable time under California’s Wage Orders.

In Frlekin v. Apple Inc.,we learn that Apple required retail store employees to undergo 5-20 minutes mandatory exit searches of their bags, packages, purses, backpacks, briefcases, and personal Apple technology devices, such as iPhones.  Company policy further required employees to clock out before submitting to an exit search.

Retail store employees filed a class action against Apple for failure to pay minimum wage and overtime for time spent waiting for and undergoing exit searches.  

Apple filed a motion for summary judgement, claiming time spent on exit searches is not compensable because employees could avoid the search by not bringing personal items to work. The district court agreed with Apple’s argument and plaintiffs appealed to the Ninth Circuit, which then asked the California Supreme Court to determine:

Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as “hours worked”?  

The Supreme Court concluded the answer was “yes”:

1. Apple controls its employees during exit searches by:

  • Threatening discipline for failure to comply;
  • Confining employees to the premises while they wait for and undergo an exit search;
  • Compelling employees to perform specific and supervised tasks while awaiting and during the search (locating a manager to conduct the search, unzipping belongings, removing personal items from bags, etc.)

2. Apple’s argument that the activity is not compensable because employees could avoid it by not brining bags to work is at odds with the “wage order’s fundamental purpose of protecting and benefiting employees” and is contrary to the historical interpretation of the definition “hours worked” in the wage order.

3. Apple’s proposed rule conditioning compensability on whether an employee can theoretically avoid bringing a bag, purse, or iPhone to work does not offer a workable standard, and certainly not an employee protective one.

4. Given cell phones’ importance in modern life, Apple could not reasonably argue employees can leave home without their cell phones.  Apple’s CEO previously referred to the iPhone as having “become so integrated and integral to our lives, you wouldn’t think about leaving home without it.”

Conclusion

The Apple decision stands in a long line of court decisions that “made clear that wage orders…must be liberally construed in a manner that serves its remedial purposes of protecting and benefitting employees.”

Employers, when in doubt regarding wage and hour law as it pertains to your business practices and policies, consult an employment lawyer. A simple 20 minute conversation between management and legal counsel could save businesses the time and expense of trial court and appeals.

Tal Burnovski Yeyni is an employment defense attorney.

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