June 18, 2018

June 18, 2018

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Bag Inspection Policies Should Inform Employees to Remain On-The-Clock

On January 10, 2018, the Northern District of California certified a state-wide class of non-exempt hourly employees who allege that they were not fully compensated for all time spent submitting to their employer’s bag inspection requirements. (Heredia v. Eddie Bauer, LLC, January 10, 2018, Freeman, B.). 

In this case, the employer maintained a formal written policy that required all hourly employees who carried a bag that could be used to conceal merchandise to submit to a personal property or bag inspection by a member of management before leaving the store at the end of their shift. Problematically, the written policy at issue was silent as to:

  1. Whether employees must clock out before or after undergoing the required inspections.
  2. Whether managers needed to inform employees that the inspections would be conducted on-the-clock. 

The employer claimed that all members of management were trained to conduct all bag inspections and to inform all employees that bag inspections were on-the-clock.

When certifying the class, the Court found that both the commonality and typicality requirements of Rule 23 were met since there was a common question about whether the inspections were to be conducted off-the-clock or on-the-clock. The Court dismissed arguments that class treatment was inappropriate because not all hourly employees carried bags to work, finding that even if they did not carry a bag they were still required to inform management that they did not have a bag before leaving the store. The Court also dismissed the employer’s argument that the written policy did not specifically state that the inspections had to be conducted off-the-clock and were therefore not a policy or practice that resulted in off-the-clock inspections in every instance.

A takeaway for employers enforcing a bag inspection: the policy should state that the inspection must occur while the employee is on-the-clock.  This will inform employees that they must stay clocked in for the inspection and will reinforce to management that they must ensure employees are clocked-in until the inspection is complete. 

© Polsinelli PC, Polsinelli LLP in California

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As an employment lawyer, Stephanie Delatorre is well aware that management decisions directly correlate to business decisions, and she remains focused on identifying and advising clients on their options and best courses of action. A business-minded attorney, Stephanie works closely with clients to build relationships, understand their operational and management challenges, and provide legal counsel  both inside and out of the courtroom. She advises corporate clients and individuals in all aspects of complex employment litigation, and has represented businesses before...

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