California Supreme Court Finds That Employers Must Pay Employees for Time Waiting in Security Check Lines
On February 13, 2020, the California Supreme Court ruled that employers must pay employees for waiting in mandatory security check lines at the end of the employee’s shift according to the Court’s landmark decision in Frlekin v. Apple, Inc. (Case No. S243805).
The Court reviewed an Apple policy that forbid its employees from leaving the premises after the end of their shift without first allowing the inspection of their bags, purses, and packages by a manager or security guard. The employees were required to clock out before the security search, and failure to abide by the protocol could result in discipline. The security search involved employees opening their bags, being directed to remove any suspicious items, opening zipper compartments, and allowing any of their personal Apple products inside to be inspected against a security log that would verify that the product belonged to the employee. Employees estimated that the process of waiting for a manager to commence and conclude the inspection took between five to 20 minutes. The plaintiffs claimed that the security check constituted “hours worked” for which they were not paid.
The case originated in the federal District Court for the Northern District of California. The federal district court certified a class of all of Apple’s nonexempt employees but limited its inquiry to scenarios in which the employee voluntarily brought a bag or package purely for their own convenience.
The district court dismissed the claim, finding that the control element in the “hours worked” clause in the Industrial Welfare Commission’s Wage Order 7 required both that the employer restrained the employee’s action and that the employee had no plausible way to avoid the activity. The employees appealed to the Ninth Circuit, which certified the security check question to the California Supreme Court for a ruling.
The Court explained that an employee’s time is compensable under either of two conditions: an employee is subject to the employer’s control, whether or not the employee was working; or the employee is suffered and permitted to work and the employer knows or should have known about it, whether or not the employee was under employer control.
The Court concluded that Apple employees were under the control of Apple while waiting for and during the security checks. The Court explained its reasoning on the following: employees were subject to discipline for not complying with the bag search; employees were confined to the premises during the search; and employees were subjected to duties, such as locating a manager or security guard to commence the search, opening bags and packages, and removing their Apple devices for inspection.
The Court rejected Apple’s argument that the activity must be unavoidable and required in order to be considered “hours worked,” finding Apple’s argument to be an untenable redefinition of the control element, which was at odds with the history of the Wage Orders and in contravention to the fundamental purpose of employee protection.
The Court also opined that Apple would still need to pay affected employees even if the search were tailored to minimize the time it required, harkening to the Court’s decision on de minimis time in Troester v. Starbucks 2018) 5 Cal.5th 829.
What this means for California employers.
Employers using security checks before or after the employees’ shift must compensate the employees for the time waiting in line. Employees must be clocked in for such security checks and similar mandatory tasks. Even if employers can streamline the process, they would be wise to pay for the time, as what is considered de minimis under California law remains unclear.
Employers with questions regarding the applicability of the Frlekin decision may contact the authors or their usual employment law counsel at Atkinson, Andelson, Loya, Ruud & Romo.
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