California Court Finds “Hours Worked” to Include Required Exit Searches

In a unanimous opinion on February 13, 2020, the California Supreme Court held that time spent by an employee on his/her employer’s premises waiting for, and undergoing, required exit searches of packages, bags and personal technology devises voluntarily brought to work for personal convenience is compensable as “hours worked.” Frlekin v. Apple, Inc., Case No. S243805. The relevant California wage order applicable in this case, Wage Order No. 7, defines “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” ¹

Facts Leading to the Court Case

Apple has a written policy that requires its retail store employees to undergo exit searches of their bags, packages, purses, backpacks and briefcases for loss prevention purposes. Apple employees must also allow their personal Apple products (i.e., iPhones) to be examined before leaving work. The searches must be done by an Apple manager or security employee, and employees may be subject to discipline for failing to comply. Apple also requires its employees to clock out before undergoing the exist search. Therefore, Apple does not pay its employees for the time they spend on the exist searches. These daily searches take between 5 to 25 minutes a day. In Frlekin, the Supreme Court held that under these circumstances, Wage Order 7 requires Apple to compensate its employees for the time spent on exit searches. The Court noted that under the Wage Order, employers must compensate employees for “hours worked” when: (1) the employee is subject to the control of the employer; or (2) when the employee is suffered or permitted to work. Focusing exclusively on the “control” prong, the Court noted that Apple controls its employees by requiring the bag searches under the threat of discipline, confining employees to the company’s premises when they wait for and undergo exit searches, and forcing employees to track down a manager or security employee, unzip and open bags, and submit Apple products for inspection.

The Court rejected Apple’s argument that it need not pay for exit searches because the employees can avoid the searches by not bringing bags or their Apple products into the store. The Court emphasized that, as a practical matter, Apple’s exit searches cannot be avoided because employees have little choice as to whether to bring a bag to carry their everyday personal belongings given that employees must wear Apple-approved attire at work, but must also remove or cover the attire outside of work. As a result, employees practically must carry their work uniform in a separate bag to the store. The Court also noted that the iPhone, one of Apple’s leading products, has become integral to one’s daily life. According to the Court, employees have little true choice in deciding whether to bring their cellphones to work.

Frlekin did not hold that all security checks must be compensated. In future cases concerning exit searches, employers may be able to distinguish Frlekin based on its facts. However, employers in all jurisdictions should pay attention to whether their state courts are now going to implement more stringent rules that mirror the California court’s decision in Frlekin.

To discuss how this ruling may affect you or your business, please contact Claire Saady, Esq. at claire@saadyandsaxe.com, 727-291-2900 or 813-909-8855.

¹ This is in conflict with the US Supreme Court’s unanimous decision in Integrity Staffing Solutions v. Busk (December 9, 2014) in which the Court held that employees who were required to undergo daily security screenings before leaving the warehouse (approximately 25 minutes a day) were not entitled to compensable pay under the federal Fair Labor Standards Act because the security screenings were not an “integral and indispensable” part of their job and therefore, did not have to be paid for such time.