Apple chooses to fight bag check suit with fresh legal argument

Apple Inc.'s defense is thinking different about a class action over the company not paying employees for time spent waiting to get their bag checked. While other California defendants - including Urban Outfitters Inc. on Tuesday - have settled the rare lawsuit over time workers wait without pay to get their bags security screened, Cupertino-based Apple has filed a summary judgment motion to kill a class certified lawsuit on behalf of 12,400 California employees at the state's 52 Apple Store locations. Freklin v. Apple Inc., CV13-03451 (N.D. Cal., filed July 29, 2013).

Apple lawyer Julie A. Dunne's argument appears simple. Apple Store employees choose whether they bring a bag to work, the Littler Mendeslon PC partner wrote in Apple's motion briefing, and therefore the worker controls if the bag check happens.

But in their own summary judgment motion, plaintiff lawyers Lee S. Shalov of McLaughlin & Stern LLP and Kimberly A. Kralowec of the Kralowec Law Group note, "Apple controls all aspects of the checks" and conduct inspections purely for their own benefit of ensuring workers do not steal.

U.S. District Judge William Alsup's Nov. 4 hearing on the dueling summary judgment motions is uncharted territory for bag check disputes, lawyers say, adding it is not just unclear who will prevail, but how, if plaintiffs win, damage allocations work.

Patrick Kinchen, a plaintiff's solo practitioner who negotiated a $4 million settlement in 2010 for Polo Ralph Lauren workers who got their bags checked without pay, derided Apple's choice argument as "ridiculous."

Kinchen gave the example of someone who needs to bring a bag with books to the job because, "When they finish their shift, they jump on a bus to night class." Under Apple's logic, Kinchen noted, that worker has voluntarily chosen to bring a bag.

Oswald Cousins, an employment defense lawyer at Nixon Peabody LLP, countered such a worker has, in fact, chosen to bring the bag and get screened instead of going home after work for the bag. Added Cousins, "Why should the person who goes to school after work actually get paid more because they had their bag checked?"

A former Century City Apple Store employee, Amanda Freklin sued to recover back pay for each time a manager inspected her bag prior to leaving for a rest break or completion of shift. Freklin and other employees have claimed to regularly wait 10-15 minutes before their supervisor is available to check their bag.

The lawsuit at first included plaintiffs from New York, Massachusetts, and Ohio, but Alsup dismissed those charges after a December U.S. Supreme Court case, Busk v. Integrity Staffing Solutions Inc., found bag checks are not compensable under the Federal Labor Standards Act. The high court ruled that employers may choose to not pay workers for activities done before or after they perform their job.

However, Alsup granted class certification in July for California Apple workers, because the state law test is different. California Industrial Welfare Commission Wage Order No. 4 stipulates employees should get paid for all time they are under an employer's control.

This law has not been significantly tested regarding bag checks, noted Kinchen. Ralph Lauren Polo and Celestica Corp. settled bag checks suits, and per a federal court filing on Tuesday, Urban Outfitters subsidiary Anthropologie is poised to settle a bag check case involving 700 retail workers for an undisclosed amount. Moore v. Urban Outfitters Wholesale Inc., CV13-2245 (N.D. Cal., filed May 16, 2013). A larger case involving up to 12,000 employees in Urban Outfitters stores is also in settlement talks. Berry v. Urban Outfitters Wholesale Inc. et. al, CV13-2628 (N.D. Cal., filed June 7, 2013)

And in arguably related cases about putting on and taking off police uniforms before and after work, defendants won rulings by arguing officers violated their union contract in suing. "Those are not really on point," Cousins said.

One unknown in the Apple suit is how a court would allocate damages, as Apple has not kept records of its bag checks. Matthew C. Helland, a plaintiff attorney at Nicholas Kaster LLP who negotiated the settlement for Celestica, said allocation should not be too different from a suit over missing overtime. But Cousins warned such a process could make various Apple workers demonstrate they brought their bag to work, the store in question adhered to the policy, and their wait time could be roughly calculated. "It might require individual proof of liability," the lawyer said.

matthew_blake@dailyjournal.com