Time Spent on Bag Checks Constitute “Hours Worked” Under Frlekin v. Apple, Inc.

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In Frlekin, et al. v. Apple, Inc., case number 15-17382, the Ninth Circuit requested that the California Supreme Court decide, as a matter of California law, whether time spent by Apple retail employees undergoing required security checks on Apple’s premises constituted “hours worked” under Wage Order 7, even though the packages, bags and technology devices checked were brought to work purely for employees’ convenience (slip op. available here). The California Supreme Court’s answer was a resounding “yes.” Frlekin v. Apple, Inc., __ F.3d __ at p. 8 (9th Cir. Sept. 2, 2020) citing Frlekin v. Apple, Inc., 8 Cal.5th 1038, 1042 (2020).

As the California Supreme Court explained, under California law, the definition of “hours worked” has two independent parts: “time during which an employee is subject to the control of an employer” and “time the employee is suffered or permitted to work, whether or not required to do so.” In the case of the Apple employees’ security checks, the California Supreme Court needed only to address the “control clause” of the minimum wage order. Frlekin, __ F.3d __ at p. 10, n. 2.

The underpinning of the California Supreme Court’s analysis under the “control clause” was that, during the searches, Apple controlled its employees in several ways. First, it had a bag search policy that employees were required to comply with under threat of discipline. Second, employees were confined to the premises while waiting and undergoing the searches, that took anywhere from 5 to 20 minutes. Third, employees had to actively participate in the search by locating a manager or security guard, moving or removing items, unzipping containers, opening packages, and removing personal Apple devices for inspection. Frlekin, 8 Cal.5th at 1046.

The fact that the employees’ packages, bags, and technology devices were brought for the employees’ own convenience did not sway the court. As “a practical matter,” employees routinely bring such items to work including, in particular, iPhones. The irony that Apple argued (unsuccessfully) that iPhones were not necessary for its own employees was lost on the Court. Frlekin, 8 Cal.5th at 1056.

Authored by:
Robert Friedl, Senior Counsel