Apple Must Pay Workers For Time Spent Undergoing Exit Searches – Since 2009

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The U.S. Court of Appeals for the Ninth Circuit in San Francisco has ordered Apple, Inc. to pay workers for time they spend waiting for and undergoing “exit searches” after their shifts ended for the past decade.

Apple is the most valuable company in the world.

Yet Apple required its workers to undergo mandatory exit searches at the end of their shift after they signed out. In other words, Apple required the workers to clock out prior to the exit search and then refused to compensate them for the time they spent undergoing the exit search, which was estimated at from five minutes up to to 45 minutes.

A three-judge appellate panel Wednesday reinstated the case, which was dismissed in 2015, and granted the plaintiffs’ motion to rule in their favor. The panel ordered the lower court to determine the remedy to be afforded to individual class members.

Five workers originally filed the class action lawsuit in 2009 on behalf of more than 10,000 current and former workers who were required to wait while a store manager or security officer checked their bags and packages at the end of their shifts.

When he dismissed the case, U.S. District Judge William Alsup said the workers’ time was not compensable under California’s wage and hour law as “hours worked” because they were not subject to the control of the employer and it was not a time that workers were “suffered or permitted to work.”

The appeals court certified the question of whether the time was compensable to the California Supreme Court, which concluded that it is compensable.

California’s high court said Apple’s employees are in fact subject to Apple’s control while waiting for and undergoing exit searches, which, it added, are conducted for Apple’s benefit and enforced through the threat of discipline.

Apple argued in the appeal that the time spent in exit searches is “de minimus” or insignificant but the court refused to consider that argument because Apple failed to raise it in the lower court.

The case is Frlekin v. Apple, No. 15-17382 ( Sept. 2, 2020). The appellate panel included 9th Circuit Judges Susan P. Graber and Michelle T. Friedland, and U.S. District Judge Consuelo B. Marshall.

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