Siri, Must Apple Pay Workers for Post-Shift Bag Search?

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By Joyce E. Cutler

Should Apple Inc. workers be paid for time spent waiting for their bags to be searched at quitting time? The California Supreme Court will answer that question for the U.S. Court of Appeals for the Ninth Circuit ( Frlekin v. Apple Inc., No. S243805, review granted 9/20/17 ).

The state justices agreed Sept. 20 to review whether California law requires Apple to pay 12,400 employees for time spent on the searches after they’ve clocked out. Workers claimed the anti-theft searches at Apple’s retail stores can take up to 20 minutes after they clock out.

The answer could have reverberations for countless workers and employers across the state. T.J. Maxx, HomeGoods, and Marshalls earlier this year settled for $8.5 million a similar case covering 82,500 workers.

“This question has come up quite often recently, so it will be good to have the question settled,” Janine Menhennet, an attorney with Cohelan Khoury & Singer in San Diego, told Bloomberg BNA Sept. 21.

Menhennet wrote a friend-of-the-court letter on behalf of the California Employment Lawyers Association supporting the Ninth Circuit’s request.

Neither Apple nor the workers’ representatives could be reached for comment Sept. 21.

Trial Win

Apple in November 2015 won at the trial level. Judge William Alsup of the U.S. District Court for the Northern District of California, held 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.”

Alsup, when certifying the class in July 2015, distinguished between carrying certain items out of necessity and others out of convenience.

Workers appealed that ruling to the Ninth Circuit, which turned to the state high court for clarity under California law.

Rephrasing the Question

The state court rephrased the question to address Alsup’s ruling: “Is 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?”

The state court docket indicated no schedule yet for briefing or oral arguments.

Richard Howard Rahm, Julie A. Dunne, Todd Kenneth Boyer, and Michael Gerald Leggieri of Littler Mendelson PC in San Francisco, San Diego, San Jose, and Walnut Creek, Calif., and Theodore J. Boutrous and Joshua Seth Lipshutz of Gibson Dunn & Crutcher LLP in Los Angeles and San Francisco represent Apple.

Kimberly Ann Kralowec and Kathleen Styles Rogers of the Kralowec Law Group, San Francisco; Lee S. Shalov and Brett R. Gallaway of McLaughlin and Stern LLP, New York; and Peter Roald Dion-Kindem of Peter R. Dion-Kindem PC, Woodland Hills, Calif., represent the plaintiffs.

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

To contact the editors responsible for this story: Terence Hyland at thyland@bna.com

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