Checking Employees’ Bags Must Be Done on the Clock

Jul 01, 2020

By Nicholas Grether, Esq., The Maloney Firm, APC

For many years, courts have attempted to define exactly what time spent by an employee before and after the workday must be compensated.  While the courts have provided a number of illustrative decisions, bright-line rules tend to be in short supply.  For example, the following must be paid: time spent putting on and taking off employer-required protective gear (IBP, Inc. v. Alvarez, 546 U.S. 21 (2005)); time spent traveling in company vehicles to the worksite when required by the employer (Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000)); and time spent performing tasks for the benefit of the employer on a regular basis, no matter how short the time (Troester v. Starbucks Corp., 5 Cal.5th 829 (2018)).  By contrast, using a commuting option provided by the employer as an optional benefit does not have to be paid (Overton v. Walt Disney Co., 136 Cal.App.4th 263 (2006)).  

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But what about an employer-required check of an employee’s bag, purse, or backpack in order to deter theft?  Employers have argued there is no need to bring a bag, while employees have argued they were under the control of their employers and should be paid.  In Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020), the California Supreme Court ruled that the time employees spend waiting for a bag check must be paid even if the bag was brought purely for personal convenience.  This time is considered “hours worked” and therefore compensable in California.  The ruling will directly impact employers who utilize bag checks and requires employers to modify their policies and procedures to ensure that employees are paid while waiting for their bags to be checked.

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Apple’s Bag Check Policies

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Employees who worked at Apple, Inc. (“Apple”) retail locations were subjected to a bag check if they brought a bag and/or personal Apple device to work.  The policy applied equally to briefcases, purses, and backpacks.  The employees claimed that they waited 5 to 20 minutes, and on occasion, up to 45 minutes to have their bags checked.  Employees were required to clock out, stay in the store, find a manager or security guard to perform the bag check, open bags for inspection, and remove Apple devices for inspection.  Apple did not compensate its employees for this time and acknowledged that the purpose was to prevent theft. 

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The employees argued they were under the control of their employer and were entitled to be paid.  Apple argued that employees could choose not to bring a bag and/or Apple device to work, and thus would not be subject to the check.  Since the time spent waiting for and undergoing the bag check was considered voluntary, Apple argued that it did not control the employees. 

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A class action lawsuit was filed in federal court, claiming the employees were not paid at least the minimum wage for the time spent waiting for, and undergoing bag checks.  The trial court ruled that the time was not compensable and granted Apple’s motion for summary judgment.  On appeal, the 9th Circuit asked the California Supreme Court to decide as a matter of California law if the time spent waiting for, and undergoing “required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’”?

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The Court Focused on the Benefits to the Employer

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Apple tried to analogize its bag checks to the rule for commuting to and from work.  While commuting, if required to meet at a certain place or time and use a certain method of transportation, time must be paid once you are subject to the employer’s control.  However, if a transportation option is voluntary, such as allowing employees the option to use a company vehicle or a shuttle to transport the employee from the parking lot to the worksite, that time may not need to be paid.

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The Court disagreed, noting the inherent differences between commuting to work and an employer-mandated bag check.  For the former, the only arguable interest of the employer during the commute is that the employee arrives to work on time; the employer does not particularly care how an employee gets to work or if she stops somewhere else on the way.  For the latter, the employer has the interest of deterring theft and the employee is not free to pursue their choice of activities while waiting for the bag check.

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Providing an Option to Avoid the Bag Checks is Not a Deciding Factor

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The Court was not persuaded by Apple’s argument that bringing a bag and/or Apple device to work for personal convenience was similar to choosing to use employer-provided transportation.  The Court noted that 70% of employees brought bags, that employees were required to cover their Apple clothing while on breaks (necessitating employees to bring extra clothing to be able to leave the store), and that employees were required to wait for a bag check even if an employee only brought a personal Apple device.  The Court explicitly stated that the ability to avoid an employer-controlled activity is not the only factor that determines whether the employees’ waiting time has to be paid. 

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What Should Employers Do?

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Now the Court has made clear that time waiting for a bag check must be paid, examine the reasons behind bag-check policies and determine if those goals can be accomplished in other ways.  It is certainly understandable for a business to try to limit theft by employees and customers.  However, now is a good time to audit your practices to see if they are even effective at deterring theft. 

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Apple required not only backpacks to be checked, but also small purses and personal Apple devices.  Limiting the size/type of bag that must be searched will allow some employees to leave right away without additional cost to the employer.  Providing employees with smaller, clear bags may be an option for some businesses.  Be aware that if the employer wants to have an employee verify that they have no bags that must be searched, this should also occur while the employee is on the clock.  The key component for determining hours worked in California is control, and until an employee is free of the employer’s control they must be paid.

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If bag checks are necessary, make sure the employee stays clocked in until their bags are checked.  A machine for clocking out near where the search will be conducted could allow the employee to clock out immediately after being searched.  If you utilize non-exempt employee to conduct bag checks they must complete the bag checks while on the clock.

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Employers should update their policies to reflect the fact that non-exempt employees will be compensated for time spent on personal bag checks and that disciplinary consequences will be imposed for employees who clock out prior to a bag check.  Similar to employees who fail to clock out for lunch breaks, employees who clock out before getting their bags checked should face discipline to ensure compliance with the policy as well as be paid for the time. 

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About the Author: Nicholas Grether is an employment attorney in the Employment Law Department at The Maloney Firm, APC.  If you have questions regarding this article, you can contact Nicholas Grether at ngrether@maloneyfirm.com.


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