California Supreme Court Holds Apple Employees Must Be Compensated for Time Spent Undergoing Exit Searches

February 18, 2020

Last week, in Frlekin v. Apple, Inc., the California Supreme Court held that employee exit searches constituted compensable “hours worked” under California law.

Under its “Employee Package and Bag Searches” policy, Apple required its retail store employees to undergo exit searches after they clocked out.  Employees generally waited five to twenty minutes for these searches to be completed after their shifts.

In Frlekin, plaintiffs filed a class action in federal court asserting Apple failed to pay them minimum and overtime wages for the time spent waiting for, and undergoing, these searches.  After the district court held these searches were not compensable, the Ninth Circuit asked the California Supreme Court to decide whether they constituted “hours worked” under state law.

The Supreme Court explained that “hours worked” under California law include both (1) periods when the employee is subject to the employer’s control, and (2) periods when an employee is “suffered or permitted to work.”  Because of this unique definition, “an employee who is subject to the control of an employer does not have to be working during that time to be compensated under the applicable [California] wage order.”

As such, the Supreme Court held that Apple’s exit searches were compensable hours worked because its employees were “clearly under Apple’s control while awaiting, and during, the exit searches.”  Among other things, Apple confined its employees to the premises while awaiting these searches, and Apple required employees to locate a manager or security guard in order to have the searches completed after their shifts.

Employers that mandate employee exit searches should therefore review their current policies to verify they comply with the Supreme Court’s recent Frlekin decision.