Why it matters

Is time spent on the employer’s premises waiting for and undergoing required exit searches of packages or bags voluntarily brought to work by employees purely for personal convenience compensable as “hours worked” within the meaning of California’s Wage Order No. 7? Finding no clear answer, the U.S. Court of Appeals, Ninth Circuit has certified this question to the California Supreme Court. Apple employees filed a putative class action seeking compensation for their time spent waiting for and undergoing the exit searches. A district court certified a class in the suit before granting Apple’s motion for summary judgment, holding that the time spent by the class members was not compensable “hours worked” under state law. The plaintiffs appealed. Unable to find clear controlling California precedent, the federal appellate panel certified the question to the state’s highest court, noting that its interpretation of the Wage Order will have “significant legal, economic, and practical consequences for employers and employees throughout the state.”

Detailed discussion

Five employees of Apple filed a wage-and-hour class action in California federal court, seeking compensation for time spent waiting for and undergoing exit searches pursuant to the employer’s policy. The “Employee Package and Bag Searches” policy states: “All personal packages and bags must be checked by a manager or security before leaving the store.”

Because they must clock out before undergoing a search, workers are not paid for the time spent waiting for and undergoing the exit searches. A district court certified a class of more than 12,000 current and former workers subject to the policy dating back to July 2009.

A few months later, however, the court granted Apple’s motion for summary judgment. 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 judge wrote.

The plaintiffs appealed, but the U.S. Court of Appeals, Ninth Circuit was stumped. “California law provides no clear answer,” the panel wrote.

California Wage Order No. 7 provides that employers will pay each employee “for all hours worked” in the payroll period. As defined by the Wage Order, “hours worked” means “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.”

As the class members argued, employees who bring a bag or package to work and must follow the search procedures are clearly under the “control” of the employer while waiting for and during the duration of the search, meaning they are entitled to compensation for their time.

But Apple countered that the search was not “required” as workers may avoid a search by declining to bring a bag or package to work.

Whether an activity is “required” is a flexible concept, the Ninth Circuit said, increasing the uncertainty.

“The case at issue involves only those employees who voluntarily brought bags to work purely for personal convenience,” the court wrote. “It is thus certainly feasible for a person to avoid the search by leaving bags at home. But, as a practical matter, many persons routinely carry bags, purses, and satchels to work, for all sorts of reasons. Although not ‘required’ in a strict, formal sense, many employees may feel that they have little true choice when it comes to the search policy, especially given that the policy applies day in and day out. Because we have little guidance on determining where to draw the line between purely voluntary actions and strictly mandatory actions, we are uncertain on which side of the line Plaintiffs’ claim falls.”

Adding to the conundrum: The “consequences of any interpretation of the Wage Order will have significant legal, economic, and practical consequences for employers and employees throughout the state of California, and it will govern the outcome of many disputes in both state and federal courts in the Ninth Circuit,” the panel noted. “We therefore submit that this question is worthy of decision by the California Supreme Court.”

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