Why it matters

As the plaintiffs failed to establish that the employer’s bag checks took long enough to merit compensation, a California federal court dismissed the action. Eric Chavez alleged that he and other workers at Converse retail stores in the state were due wages for the unpaid time they spent waiting for and undergoing bag inspections when they exited the store premises. Converse countered with a study showing that the average combined time per employee was less than two minutes. Although the plaintiffs presented testimony from workers that some bag checks took more than one minute, the court ruled the unpaid time was de minimis. Chavez has already filed notice of appeal, arguing that the court should have waited to decide the case given that the California Supreme Court is currently considering whether de minimis time is compensable, answering a certified question from the U.S. Court of Appeals, Ninth Circuit in a case involving Starbucks.

Detailed discussion

A nonexempt hourly employee at a Converse retail store in Gilroy, CA, Eric Chavez was required to undergo an exit inspection each time he left the store during or after a shift. Each departure during his employment from September 2010 to October 2015 consisted of a visual inspection as well as a bag check, if he was carrying a bag. Converse did not pay Chavez for the time these exit inspections took or for the occasions when he had to wait for a manager to come to conduct the inspection.

Alleging violations of California’s Labor Code, Chavez filed a putative class action in 2015. The court certified a class of employees dating back to 2011, and Converse then filed a motion for summary judgment.

The employer offered a time and motion study that considered 436 exit inspections, breaking down each part of the process into waiting time, bag checks and visual inspections. The study found that 290 of the exits (66.5 percent) observed no wait time, while 120 out of 146 inspections (82.2 percent) had a wait time of 30 seconds or less.

As for the inspections themselves, the majority—67.7 percent—did not include a bag check. Where only a visual inspection occurred, the average duration was 2.3 seconds, with bag checks lasting less than 3 seconds and 100 percent of the bag checks observed taking less than 30 seconds.

Combining wait time, visual inspections and bag checks, the study found that 99.5 percent of the employees spent less than two minutes before exiting the premises. Relying on these findings, the employer argued that the unpaid time was de minimis and the suit should be dismissed.

Chavez challenged the study, providing an expert to critique it, although he did not offer his own study in response. He also proffered the deposition testimony of several coworkers, which he said demonstrated that employees spent a longer period of time for the inspections than shown by the study.

Considering the employer’s motion for summary judgment, U.S. District Judge Nathanael M. Cousins first acknowledged that whether the de minimis doctrine—which originated in the context of the federal Fair Labor Standards Act—applies to state law remains an unsettled question of law currently being decided by the California Supreme Court.

However, while the issue remains pending, the court said it remained bound by existing precedent applying the doctrine to claims under the Labor Code and moved forward with its analysis.

After a detailed review of the employer’s study, the critique offered by Chavez’s expert and the deposition testimony of 23 class members, the court concluded the time spent on exit inspections was de minimis and therefore not compensable.

Although Chavez argued the depositions refuted the employer’s study, the greatest time any deponent testified that an individual bag check took was 60 seconds, and several class members never underwent bag checks because they never brought a bag onto the premises, the court said. The study’s findings “strongly suggest the exit inspections took barely a few seconds and are thus not compensable.”

Further, “[o]nly Eric Chavez testified to always having to wait more than one minute for exit inspections,” the court wrote, Chavez having testified that he “always” had to wait at least four minutes. “The rest of the class members testified to either never waiting for an exit inspection, or waiting for an inspection less than 50 percent of the time.”

Converse’s timekeeping system records time in one-minute intervals. The study found that 95.9 percent of exit inspections took one minute or less and 99.5 percent of exit inspections had a wait time of two minutes or less. “These findings are significant because Converse’s timekeeping system cannot measure time in less than 1 minute increments … [and] the overwhelming majority—95.9 percent—of exit inspections would not have been measurable because they lasted less than one minute,” the court wrote.

Even taking into account the testimony of Chavez that he once waited 18 minutes for an exit inspection as well as that of two other workers—one who testified to waiting one to two minutes and the other who testified to waiting two minutes or more—the court was not convinced the time was enough to warrant compensation.

“[Three] out of 24 class member[s] arguably testified that their exit inspection took greater than one minute with regularity,” Judge Cousins wrote. “This testimony is insufficient to rebut the [study’s] finding that the overwhelming majority of exit inspections took less than one minute, especially where 21 other class members did not experience compensable exit inspections with any regularity,” Judge Cousins said.

The court granted Converse’s motion for summary judgment.

To read the order in Chavez v. Converse, Inc., click here.