Time spent on an employer’s premises subject to exit searches is compensable in California

The Ninth Circuit Court of Appeals—a federal court—affirmed the California Supreme Court’s 2020 ruling that employers must compensate employees for time spent on an employer’s premises while undergoing mandatory exit searches.

These decisions unequivocally categorize any time spent undergoing post-shift searches as hours worked, even when the searches are designed to deter theft.  As a result, employees must not only compensated for that time, but they are also subject to other protections employees usually enjoy while on the job during that time.  For example, any injury sustained during a search would be considered a work-related injury.

This issue originated in a class action lawsuit filed in 2013 by Apple employees that were forced to submit to searches of “bags, packages, purses, backpacks, briefcases, and personal Apple technology devices, such as iPhones.”  These searches could take up to 45 minutes.  The trial court sided with Apple and dismissed the case because the employees “could all freely choose not to bring bags to work, thereby avoiding Apple's restrictions during exit searches.”  The employees appealed.  The California Supreme Court found that the ability to theoretically avoid searches had no bearing on whether the searches should be compensated as “hours worked.”  Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020).  Rather, the critical factor is the degree of control that an employer exercises over its employees.  In this case, “Apple employees are clearly under Apple’s control while awaiting, and during, the exit searches.”  The California Supreme Court reversed the trial court’s decision.

Relying on the California Supreme Court’s decision, the Ninth Circuit Court of Appeal ordered the trial court to grant summary judgement for the employees, effectively handing the employees a total win in this case.  Frlekin v. Apple Inc., 979 F.3d 639 (9th Cir 2020).

Employees should be on the lookout for any uncompensated employer-controlled activities.  Even if an employee could theoretically avoid such activities, it is likely that the employer must compensate employees for the time spent performing employer-controlled activities.

For more information, contact your labor law counsel.

By Alex Nazarov | August 25, 2021

Legal Developments