Off the clock? Not so fast

Lessons from Frlekin v. Apple

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The California Supreme Court recently held in Frlekin v. Apple that employees’ 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 by the employees purely for personal convenience is compensable as hours worked within the meaning of Industrial Welfare Commission wage order No. 7-2001, under the “control” test.

The Court ruled that because the employees were still under the control of Apple during the time spent undergoing bag searches after clocking out, Apple was required to compensate the employees for that time. Apple’s argument that the employees could avoid the search by just not bringing a bag or an iPhone to work were rejected, in part due to the ubiquity of cell phones in our society (including Apple’s own routinely asserted stance on the matter), and because of the basic human needs of employees to bring items such as glasses, wallets, keys etc. to work.

Several factors affected this decision, including some burdensome and time-consuming procedures imposed by Apple, such as going to find a manager or security officer to conduct the search (instead of simply having a TSA-style checkout line), which resulted in employees waiting anywhere from 5 to 40 minutes to complete the bag-check process.

However, the rationale of the decision highlights California court’s inclination to compensate even de minimus (minimal) time spent under the employer’s control. Accordingly, it is likely that even if the Apple bag searches were highly efficient, taking only a minute or two each (including time waiting in line), they would still be compensable under California law as “time worked” because employees were required to undergo them and the choice not to bring a cell phone or small bag to work was considered a theoretical one. The ideal scenario would have been for Apple to let employees clock out after the completion of the bag search.

Most employers don’t have required searches but may have other requirements that might be considered time spent under the employer’s control—for example, time spent waiting to clock in or out (depending upon the availability of adequate mechanisms to do so), time needed putting on required safety gear, or time spent locking doors or otherwise securing the premises after clocking out. This case is a good reminder to evaluate your processes and policies and analyze any weak spots related to off-the- clock work (or waits) that could expose employers to potential liability. Contact experienced counsel for legal advice on these matters.