Because of concerns about employee theft, many employers have implemented practices whereby employees are screened before leaving work to ensure they are not taking merchandise with them. While these practices are often implemented in retail stores, other employers use them as well when employees have access to items that could be slipped into a bag or a purse.
Over the last several years, the plaintiffs’ bar has brought a great many class actions and collective actions against employers across the country, alleging that hourly employees are entitled to be paid for the time they spend waiting to have their bags inspected when leaving work. These lawsuits are often referred to as “bag check” cases.
While the Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk largely put an end to these cases under the Fair Labor Standards Act (“FLSA”), it did not do so under California law. That is because of a critical difference between the FLSA and California law. Unlike the FLSA, California law requires that employees be paid for all time when they are “subject to the control of the employer” or for all time that they are “suffered or permitted to work.” And, not surprisingly, plaintiffs’ lawyers in California have argued that employees are “subject to the control of the employer” and “suffered” to work while they wait for and participate in security screenings.
In defending against these claims, not only do employers often argue that each employee’s experience differs such that class certification would be inappropriate, but they frequently argue that the time spent in “bag checks” is so small as to be de minimis – and, therefore, not compensable.
Courts throughout the country have recognized the principle that small increments of time are not compensable, including the United States Supreme Court.
In a class action in the Northern District of California where a class had been certified, Nike argued that the time its employees spent in “bag check” was de minimis. And the Court agreed, awarding it summary judgment.
In Rodriguez v. Nike Retail Services, Inc., 2017 U.S. Dist. LEXIS 147762 (N.D. Cal. Sept. 12, 2017), the district court certified a class of all Nike non-exempt retail store employees since February 2010. But in certifying the class, the Court specifically held that, “whether time spent undergoing exit inspections is de minimis is a common issue. ‘That is, if the time is compensable at all, an across-the-board rule, such as sixty seconds, might wind up being the de minimis threshold.’”
Seizing on that holding, Nike commissioned a time and motion study. That study revealed that an average inspection takes no more than 18.5 seconds. Nike argued that such time was de minimis. The Court agreed.
In reaching its conclusion, the Court found that the average inspection time was minimal, employees did not regularly engage in compensable activities during inspections, and it would have been administratively difficult for Nike to record the exit inspections.
The plaintiffs have already filed an appeal from the order granting summary judgment against them.