Why it matters

Apple recently scored a victory when a California federal court tossed a lawsuit brought by employees at retail locations seeking compensation for time spent having their bags checked. After the court certified a class of more than 12,000 current and former workers at stores in the state, Apple moved for summary judgment. The plaintiffs had to prove two elements to prevail, the court said: that the employer restrains the employee's action during the activity in question and that the employee has no plausible way to avoid the activity. While the judge found that the workers met the first element, they failed to satisfy the second as "the Apple worker can choose not to bring to work any bag or other items subject to the search rule." Apple let employees choose whether or not to bring bags and personal Apple devices into the store subject to the condition that the items must be searched when they left, the court explained. The "ability to bring a bag into Apple's stores is simply an optional benefit with a string attached—the requirement to undergo searches," the court said, granting summary judgment in favor of the employer.

Detailed discussion

In 2013, Amanda Frlekin sued Apple Inc. along with four other hourly paid and nonexempt employees who worked at California retail stores. The plaintiffs asserted claims under California law and the Fair Labor Standards Act (FLSA) for the time spent undergoing exit searches pursuant to Apple's bag search and technology card search policies and for the time spent waiting for the searches to occur.

Apple implemented the search policies because of concerns with internal theft of products. The "Employee Package and Bag Searches" policy imposed mandatory searches of all bags, purses, backpacks, or briefcases whenever workers left the store. Employees also filled out a "Personal Technology Card" that listed the serial numbers of their personal Apple devices, a list that was checked during the exit search to ensure any devices were already owned.

The policies detailed when and how the searches were to be conducted, and each of the 52 Apple stores in California performed the searches. The employees argued that they had to clock out prior to undergoing a search and their recorded hours did not account for the time spent finding a manager or a security guard to perform the search, that they had to wait in line if multiple employees sought to leave at the same time (such as at the end of a shift), or had to wait until the manager or security guard was free to conduct the search.

In earlier motion actions, the plaintiffs' FLSA claims were dismissed following the U.S. Supreme Court's decision in Integrity Staffing Solutions, Inc. v. Busk, where the court held that time spent during mandatory security screenings was not compensable under the federal statute.

The court certified a class of plaintiffs asserting California state law wage claims, and the parties narrowed the issue as to whether Apple had to compensate its employees for time spent waiting for bag searches for workers who voluntarily brought a bag to work purely for personal convenience. Importantly, no class members intervened in the action arguing they had special needs to bring a bag to work and none opted out.

Apple then moved for summary judgment.

Wage Order 4 requires employers to pay employees a minimum wage for "all hours worked in the payroll period," defining "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."

Given this, the plaintiffs were required to prove two elements, the court said: that the employer "restrains the employee's action during the activity in question," and that "the employee has no plausible way to avoid the activity; put differently, the activity must be mandatory and not optional at the discretion of the worker."

"Here, the first element is met, namely control, for once the worker wishes to leave with a bag, the worker is restricted and must stand in line for the security screening," U.S. District Court Judge William Alsup explained. "The second element, however, is not met, for the Apple worker can choose not to bring to work any bag or other items subject to the search rule."

Apple could have prohibited employees from bringing bags and personal devices into the store altogether, the court pointed out. Instead, "Apple took a milder approach to theft prevention and offered its employees the option to bring bags and personal Apple devices into a store subject to the condition that such items must be searched when they leave the store."

Employee choice was dispositive and there was no dispute the plaintiffs had the freedom to elect to avoid searches. "It is undisputed that some employees did not bring bags to work and thereby did not have to be searched when they left the store," the court said.

The class limited itself to adjudicating liability for employees who voluntarily brought a bag to work purely for personal convenience, Judge Alsup said, noting that no plaintiffs intervened to assert claims based on any special-needs scenario that might have made the choice to bring a bag or not illusory. "The ability to bring a bag into Apple's stores is simply an optional benefit with a string attached—the requirement to undergo searches," he wrote, and the plaintiffs could have "avoided searches by declining to bring bags or Apple technology to work."

Judge Alsup rejected the argument that bringing a bag to work was not an affirmative benefit but a standard freedom of the job. "Apple was concerned that its employees could pilfer merchandise in their bags or claim that they already owned any Apple products they carried out of the store," the court said.

"Apple could have alleviated that concern by prohibiting its employees from bringing personal bags or personal Apple devices into the store. Instead, Apple took the lesser step of giving its employees the optional benefit of bringing such items to work, which comes with the condition that they must undergo searches in a manner dictated by Apple before they exit the store."

That free choice was fatal to the plaintiffs' claims, the court concluded.

As for the "suffered or permitted to work" prong of the analysis, the court said the searches had no relationship to the plaintiffs' job responsibilities and were simply peripheral activities relating to Apple's theft policies. Analogizing to the Integrity Staffing Solutions decision, the court said the security screenings undergone by Frlekin and her fellow Apple workers were two steps removed from their productive activity, just like those in the U.S. Supreme Court case.

"The time our plaintiffs spent waiting for the searches to be completed plainly does not constitute 'work' under the 'suffered or permitted' prong," Judge Alsup said. "Our plaintiffs merely passively endured the time it took for their managers or security guards to complete the peripheral activity of a search. Neither the searches nor waiting for them to be completed had any relationship to their job responsibilities. They cannot be compensated for that passive activity under the 'suffered or permitted' prong."

Denying summary judgment for the plaintiffs, the court granted the motion in favor of Apple.

To read the order in Frlekin v. Apple Inc., click here.