Apple Employee Bag Search Dispute Heads to State Court

By Jon Steingart

Does California law require Apple Inc. to pay retail store employees for the time they spend waiting for anti-theft security screenings at the end of their shifts? A federal appeals court asked the state Supreme Court to answer the question ( Frlekin v. Apple, Inc. , 2017 BL 286498, 9th Cir., No. 15-17382, order certifying question to California Supreme Court 8/16/17 ).

“The Ninth Circuit is seeking clarity from the California Supreme Court about a legal issue that has not been squarely addressed by California courts that have considered compensation for claims for bag checks,” Lee Shalov, an attorney for the workers, told Bloomberg BNA Aug. 16. “We think that the tenor of the court’s analysis suggests that in the court’s view, the plaintiffs have valid claims for relief.” Shalov is with McLaughlin & Stern LLP in New York.

Apple didn’t immediately respond to a request for comment Aug. 16.

Employees Can Avoid Bag Searches, Judge Said

A lower court judge ruled for Apple in the 12,000-member class action in November 2015. State law requires pay when an employee is subject to an employer’s control, but the employees could choose not to be subjected to the searches by leaving their bags at home, the judge said. The workers appealed to the Ninth Circuit, where a three-judge panel heard oral arguments July 11.

It isn’t clear whether the California law requires pay, the Ninth Circuit panel wrote in an order asking the state supreme court to weigh in. Judges Susan P. Graber, Michelle T. Friedland, and Consuelo B. Marshall serve on the panel.

A federal court sometimes asks a state court to interpret a state law when it forms the basis of a lawsuit in federal court. The California Supreme Court could choose to decline to answer the Ninth Circuit’s question. But the state court’s interpretation could affect many cases pending in state and federal courts, the Ninth Circuit said.

Screening Time Settlements Expensive

The question of whether workers are entitled to pay for bag searches is a frequent topic of litigation. Earlier this month, T.J. Maxx, Marshalls, and HomeGoods settled for $8.5 million a lawsuit brought by an an estimated 82,500-member class of retail store workers who said they should be paid for the time they spend going through screenings.

In 2014, the U.S. Supreme Court ruled that pickers at an warehouse didn’t need to be paid for time spent in end-of-shift security screenings because it wasn’t “integral and indispensable” to the job. The judge in Apple’s case dismissed the workers’ federal claims because of the Supreme Court decision, leaving intact their claims under state law.

To contact the reporter on this story: Jon Steingart in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Chris Opfer at

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