Daily Labor Report®

Apple to Argue Pay Isn’t Needed for California Worker Bag Checks

Dec. 3, 2019, 6:48 PM

Whether Apple Inc. owes millions of dollars to retail employees for off-the-clock time spent waiting for mandatory bag searches will be known by spring.

The California Supreme Court will hear arguments Dec. 4 on whether Apple must pay more than 12,000 hourly workers at retail stores for the time spent waiting for the bag checks. The court will issue a ruling within 90 days of oral arguments in the closely watched case.

It’s the third case the state high court has considered in the past year on minimum wage and time workers are under employers’ control. The court in a case involving Starbucks held that workers must be paid for all time off the clock when they’re still under an employer’s control. The state justices in July also held California corrections workers covered by a collective bargaining agreement can’t seek additional pay for time spent walking to their assigned job postings, but supervisors could seek compensation.

“This is just really a California-centric case,” said Gregg Adam, a partner with Messing Adam & Jasmine LLP who represented the prison guards and filed a brief supporting the Apple workers.

“We’ve really seen the California Supreme Court recognizing that the Legislature and Industrial Welfare Commission have really intentionally gone far further than federal law and protect employees under California law,” Adam said. And the case has interesting public policy implications for workers, such as nursing mothers bringing breast pumps to express milk and diabetics bringing testing or insulin equipment, he said. “Anyone with a medical condition, they’re now subject to less freedoms from their employer than somebody who isn’t.”

Apple requires workers to have their bags searched before they leave the store and that waiting time is compensable under California law, the workers said. California wage orders define hours worked as “the time during which an employee is subject to the control of the employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

The mandatory, unpaid checks on the busiest days can take 20 to 40 minutes to complete, attorneys for former Apple employee Amanda Frlekin said. Employees who refuse to comply with directions by a store manager or guard are subject to discipline, including termination.

“The district court erred by importing a less-protective federal standard into California law,” the workers’ opening brief said.

Apple argues California law already is settled based on previous rulings interpreting hours worked. The class stipulated that bags brought to work were for purely personal convenience, the company said, and that doesn’t constitute hours worked.

“This case does not involve a mandatory airport-style screening where every person must be checked, whether or not they have bags with them,” said Apple’s counsel with Littler Mendelson and Gibson Dunn & Crutcher. Workers could’ve decided not to bring bags and that would’ve eliminated the potential for a bag check.

The National Retail Federation and Retail Litigation Center Inc. in a brief supporting Apple said employees who choose to bring a bag are voluntarily agreeing to have that bag checked when they leave. The federation’s members include Walmart U.S., Macy’s Inc., and B.J.’s Wholesale Club Holdings Inc.

“The convenience of choosing to bring a bag to work to carry one’s personal belongings is like the convenience of choosing to ride the company bus to work, where the employee is not required to do so. In either instance, the action by the employee is voluntary,” the group’s brief said.

The employers’ argument mirrors the trial court’s conclusions. The U.S. District Court for the Northern District of California granted Apple summary judgment, holding that employees chose to bring bags to work and subject themselves to the company’s search policy and thus failed to satisfy California wage law requirements for being compensated when “subject to the control of the employer.”

9th Cir. Prompting

After the district court ruled in favor of Apple, Frlekin appealed to the U.S. Court of Appeals for the Ninth Circuit. The federal appeals court asked the state high court to review whether, under California law, Apple owes workers pay for time spent waiting for their their bags to be searched.

The Ninth Circuit last June held Nike Retail Services Inc. and Converse Inc. must face California workers’ class claims that they should be paid for time spent in post-shift bag checks.

The California Employment Lawyers Association, in a brief supporting the workers, said payment for the bag checks should be retroactive.

“Apple has not and cannot point to any ‘clearly well-established’ rule that governs the compensability of time spent in employer-imposed security checks,” said the group, which represents plaintiffs. “Indeed, were there such a rule, the Ninth Circuit would not have referred the subject question and this Court would not have taken the matter up under the California Rules of the Court, as noted above.”

The case is Frlekin v. Apple Inc., Cal., No. S243805, 11/25/19.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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