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Volume XI, Number 56

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Ninth Circuit Concludes That Apple Retail Employees Are Entitled to Summary Judgment on Exit Search Claim

Many employers with operations in California may already be familiar with Frlekin v. Apple, Inc.  The heavily litigated case, first filed in 2013, involves claims that Apple retail employees are entitled to compensation for time spent waiting for and undergoing mandatory exit searches.

The Ninth Circuit has now concluded that those employees are entitled to be paid for that time, holding that they are entitled to an award of summary judgment in their favor.  That is a far cry from the original 2015 ruling in the case in which United States District Court Judge William Alsup denied the plaintiffs’ motion for summary judgment and granted summary judgment to Apple, concluding that such time did not qualify as “hours worked” under California law because the searches were peripheral to the employees’ job duties, and could be avoided if the employees chose not to bring bags to work.

The plaintiffs appealed that ruling to the Ninth Circuit, which then asked the California Supreme Court to address whether time spent in exit searches was compensable time under California law.

As we wrote about here, in February of this year, the California Supreme Court weighed in, holding that the “time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees [is] compensable as ‘hours worked’” under California law.

In reaching that conclusion, the California Supreme Court found that Apple’s “employer-controlled activity primarily serve[d] the employer’s interests” as the searches were “imposed mainly for Apple’s benefit by serving to detect and deter theft.”  The Court also noted that the “exit searches burden[ed] Apple’s employees by preventing them from leaving the premises with their personal belongings until they undergo an exit search – a process that can take five to 20 minutes to complete – and by compelling them to take specific movements and actions during the search.”

On September 2, 2020, the Ninth Circuit reversed the district court’s decision, and found that the employees – not Apple – are entitled to summary judgment on the issue of compensability because the California Supreme Court’s decision is dispositive of that issue.

Although Apple argued that disputed facts precluded summary judgment in the plaintiffs’ favor “because some class members ‘did not bring bags or devices to work,’ ‘were never required to participate in checks,’ or ‘worked in stores with remote break rooms where they stored their belongings,’ and because it is disputed whether [the back check policy] was enforced through discipline,” the Ninth Circuit rejected those arguments, finding that any such “disputed facts pertain[ed] solely to individual remedies, not to the main legal question as to class-wide relief.”

The Ninth Circuit remanded the case to the district court with instructions to grant the plaintiffs’ motion for summary judgment, and to determine individual remedies (i.e., damages) for class members.

The Ninth Circuit’s decision in Frlekin serves as another reminder to California employers to reevaluate their policies and practices relating to bag checks and other screenings to ensure they comply with California law.

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©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 254
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About this Author

Kevin R. Vozzo Labor and Employment Lawyer Epstein Becker Green Law Firm
Member

Kevin R. Vozzo is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Mr. Vozzo's experience includes:

  • Representing businesses—ranging from start-up companies to large international corporations—in employment disputes involving, among other things, claims of discrimination, retaliation, harassment, wrongful termination, and wage and hour violations, in federal and state courts and arbitration tribunals, with a focus on class and collective action litigation, and defending clients against...
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