Free Choice Tanks Plaintiffs’ Claims

Just last year, the Supreme Court held in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014) that employees working at an warehouse were not entitled to overtime pay for time they spent in exit security checks designed to ensure that they were not taking company product with them. The crux of the court’s decision was that the checks themselves involved no work and were not “integral and dispensable” parts of the employees’ workdays.

In 2013, or the year before Busk was handed down, three class actions were brought against Apple Inc. raising similar claims on behalf of Apple’s 52 California retail stores. Frlekin v. Apple Inc., Case No. C 13-03451 (N.D. Cal). They contended that Apple workers leaving the premises with a bag, purse, backpack, or briefcase or with technology such as an iPhone would need to undergo an exit search before leaving for the day. The plaintiffs sought unpaid overtime under the FLSA as well as under California law and the laws of a handful of other states. 

In the wake of Busk, the court granted summary judgment as to the plaintiffs’ FLSA claims, as well as a number of FLSA claims relying on state laws that paralleled the FLSA. That left claims under California’s stricter wage and hour laws, for which the court certified a class of California hourly retail workers since 2009 – still, a healthy-sized class for the plaintiffs.

On November 7, 2015, however, the court granted summary judgment as to the remaining claims under California law. Interestingly, there was little dispute that the employees spent varying times undergoing checks after punching out and that the checks were undergone for Apple’s benefit. Nor did the court rely directly on Busk for much of its holding, as the case was being decided under California state law. Instead, the court found that the employees themselves could avoid the checks simply by not bringing a bag or purse or Apple device to work. As the court concluded: “our plaintiffs could all freely choose not to bring bags to work, thereby avoiding Apple’s restrictions during exit searches. That free choice is fatal to their claims.”

The Frlekin decision reflects that even if a case is certified, even one under California law, the employer can still prevail in a big way by obtaining a judgment against the entire class.

The bottom line: Certification does not preclude summary judgment for the employer.