In Amanda Frlekin v. Apple Inc., No. S243805 (Feb. 13, 2020), the California Supreme Court responded to a request by the United States Court of Appeal for the Ninth Circuit to answer the following question:
Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of [California law]?
The Supreme Court answered the question and, so as not to bury the lead, the answer is an emphatic YES.
The facts in Frlekin are simple. Prior to leaving any of its retail stores for any reason, Apple required its employees to submit to exit searches. During these searches the employees were required to open their bags and allow them to be inspected by managers and security team members. The issue was that employee sometimes had to wait for extended periods of times for these searches to be conducted. The larger problem was that Apple required its employees to clock out prior to submitting to the exit searches, meaning that Apple employees weren’t being paid for this time.
To make a long story short, plaintiffs filed a putative class action against Apple in federal district court. The district court granted plaintiffs’ motion for class certification but subsequently granted Apple’s motion for summary judgment determining that the time spent by class members waiting for and undergoing exit searches was not compensable as “hours worked” under California labor law. Plaintiffs appealed to the Ninth Circuit and the Ninth Circuit posed the above question to California’s highest court.
The California Supreme Court (the “Court”) began its analysis by looking at California Wage Order 7 (which govern the issue) and its definition of the phrase “hours worked.” Per that wage order, “hours worked” was defined 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.” The Court’s analysis focused on the control portion of the definition and concluded that Apple employees at issue were clearly under Apple’s control while waiting for and undergoing the required exit searches.
The Court also rejected Apple’s argument that in order for time to be compensable the activity at issue must be “required” and “unavoidable.” Specifically, Apple had argued that the exit searches were not required and could be avoided by Apple employees simply not bringing any personal bags or packages to work. According to the Court, this argument was unpersuasive because (1) the words “required” and “unavoidable” do not appear in the relevant text of Wage Order 7 and (2) Apple’s interpretation was inconsistent with the history and purpose of this wage order.
Similarly, the Court rejected Apple’s attempt to analogize its bag searches to situations wherein employers provide employees with the option of using employer provided transportation to and from work, which case law has determined does not create an obligation for employers to compensate employees when they use this option. According to the Court, the two situations were distinguishable because there were inherent differences between time spent traveling to and from work and time spent at work. In addition, the two situations were distinguishable because on the one hand the employer provided transportation primarily benefited the employees, while the exit searches primarily benefited Apple.
Lastly, the Court determined that for all practical purposes the exit searches were required given the realities of modern life. As an example, the Court pointed to the fact that an employee would have to undergo the exit search if they carried an iPhone in a jacket pocket and it was disingenuous for Apple to argue that carrying an iPhone was “optional” given the prevalence of smart phones in everyday life, as highlighted by statements by Apple’s CEO, Tim Cook.
Many lessons can be gleaned from Frlekin. The simplest being that California law requires employers to compensate employees for all time spent under the employer’s control. Another lesson is that California’s wage and hour laws are meticulous and unforgiving and care not for your good faith and legitimate business purposes.