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Hey Siri: Is Time Spent by an Employee Waiting for a Security Check Compensable?

The California Supreme Court has held that the time spent by Apple employees waiting for and undergoing required exit bag searches is compensable under the California IWC Wage Orders. The court’s Feb. 13 decision in Frlekin v. Apple was in response to a certified question from the Ninth Circuit asking for an interpretation of California law. 

In distinguishing between state and federal law, the California high court held that under the “hours worked” control clause of the Wage Order, “the level of the employer’s control over its employees, rather than the mere fact that the employer requires the employees’ activity, is determinative concerning whether an activity is compensable.” 

Looking to the language of the Wage Order, as well as its own precedent, the court found that the control exercised by the employer pursuant to its bag-check policy was sufficient to render the time spent by employees following that policy to be compensable. It went on to reason that the degree of the employer’s control determines the issue, rather than the mere fact that the action was or was not required. According to the court, additional factors in this control analysis include whether the activity was optional, whether performance of the activity was enforced through discipline, and whether the activity primarily benefitted the employer or employee.

The court rejected Apple’s argument that the policy was “optional” because employees could choose not to bring their bags and other personal items to work. Referencing the employer’s uniform policy, the court explained that employees who could only wear their company branded uniforms while actually at work have little choice concerning whether to bring a bag to work. Further, those employees who did “choose” to bring a bag to work were subject to discipline, up to and including termination, for failing to comply with the policy. Thus, under the “hours worked” control clause of Wage Order, the time was compensable. 

The court also rejected Apple’s request for the ruling to apply only prospectively. The court reasoned that Apple misconstrued California precedent that it purportedly relied upon in making its decisions regarding the policy, and, as a result, it could not claim “reasonable reliance” on settled law. 

This decision is yet another setback for employers in California. California employers should review their policies to determine how this recent decision could impact their current practices.  

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 48

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About this Author

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of...

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Scott Witlin Employment lawyer Barnes Thornburg
Partner

Scott J. Witlin is a partner and the administrator of the Labor & Employment Department in the firm's Los Angeles office. He is Co-Chair of the firm's Wage and Hour Practice Group and a member of the firm's Entertainment, Media and Sports Practice Group.

Scott assists companies in dealing with the challenges of employing workers in California and throughout the U.S. Scott's practice includes both traditional labor and employment law matters, including wage and hour class actions, arbitrations, collective bargaining negotiations, compliance with various guild and union agreements, and union organizing campaigns. He represents clients in the entertainment, broadcasting, video game, hospitality, manufacturing, retail, consumer and industrial products, and transportation industries.

Scott has been selected for inclusion in Chambers USA: A Guide to America's Leading Lawyers in the area of Labor & Employment; the Best Lawyers in America for the area of Employment Law ' Management; and Southern California Super Lawyers in the areas of Employment and Labor and Entertainment and Sports. He has twice been named a 'Top Labor and Employment Lawyer' in California by The Daily Journal (Los Angeles).

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Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment
Partner

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

312-214-2113