Labor/Employment
Nov. 11, 2015
Apple bags win for no-pay bag check policy
A federal judge on Monday ordered to close a case on behalf of 12,400 certified Apple Inc. store employees, ruling the company is allowed to not pay workers for time spent checking their bags.
Daily Journal Staff Writer
A federal judge on Monday ordered to close a case on behalf of 12,400 certified Apple Inc. store employees, ruling the company is allowed to not pay workers for time spent checking their bags.
U.S. District Judge William Alsup granted Apple's summary judgment motion and denied plaintiffs' motion for the same, vindicating the Cupertino-based company's argument that employees chose to bring a bag to work and therefore determine whether they go through the bag check. Freklin v. Apple Inc., CV13-03451 (N.D. Cal., filed July 29, 2013).
Alsup wrote that per a test adopted in the 2000 state Supreme Court decision Morillion v. Royal Packing Co., employees are only under employer control if the activity is "mandatory."
Apple, then, is not liable, because "the Apple worker can choose to not bring to work any bag or other items subject to the search rule," the judge stated.
Taken together with a U.S. Supreme Court ruling in December - Busk v. Integrity Staffing Solutions Inc., which found employees cannot be paid under federal law for security screenings - Alsup's ruling may pour some cold water on plaintiff lawyers' interest in bag check litigation.
"These suits will be discouraged if the employer can argue, as Apple did, that the employee voluntarily subjects themselves to bag check policy by choosing to bring a bag," said Donna M. Rutter, an employment defense lawyer at Rutter Law Group who has defended companies in bag check litigation.
Apple's lawyer Julie A. Dunne of Littler Mendelson PC referred questions to Apple, which declined comment.
Plaintiff lawyer Lee S. Shalov of McLaughlin & Stern LLP in New York said, "The plaintiffs are disappointed with the court's ruling and are considering all options including appeal."
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 shift completion. Freklin and other employees claimed to regularly wait 10-15 minutes before their supervisor was available to check their bag, a policy used to prevent employee theft.
The lawsuit at first included plaintiffs from outside California, but Alsup dismissed those charges after the Busk ruling, which found bag checks are not compensable under the Federal Labor Standards Act because the waiting employee is not performing work.
Alsup granted class certification in July for state Apple workers under California's Industrial Welfare Commission Wage Order No. 4 that stipulates employees must be paid for time under an employer's control.
Crucially, however, the certified class was defined as employees who voluntarily brought a bag, as opposed to those who claimed they had to carry a bag.
Alsup stressed this point, contrasting Freklin to decisions like Morillion, in which workers were required to take a company bus to work.
"Rather than prohibiting employees from bringing bags," Alsup's ruling reads, "Apple took a milder approach to theft prevention and offered its employee the option to bring bags" subject to a bag check search.
Oswald Cousins, an employment defense lawyer at Nixon Peabody LLP, noted Shalov "took a gamble" in seeking certification of a voluntary bag class, but added, "If they hadn't done that they probably wouldn't have been able to certify a class" due to individualized issues of why someone would need a bag.
Plaintiff lawyers argue this notion of choice can fall flat in real world scenarios where retailers, for example, must carry books for a post-work class. Raul Perez, a Capstone APC lawyer who represents bag check plaintiffs in cases against Urban Outfitters Wholesale Inc. nearing settlement, predicted Freklin would be heard on appeal and not necessarily deter firms like his own from bag check lawsuits.
matthew_blake@dailyjournal.com
Matthew Blake
matthew_blake@dailyjournal.com
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