After ruling, employers should reexamine security procedures

Last moth, the California Supreme Court determined in Frlekin v. Apple Inc., 2020 DJDAR 1169, that time Apple retail store employees spent engaged in required searches of bags and personal electronic devices before leaving the worksite was compensable, and adopted a multifactor test for determining whether security screening constitutes compensable time. In light of this decision, many California employers may benefit from evaluating their security procedures to determine whether they are compliant. In this article, I provide a brief overview of methods employers may use to conduct such an assessment.

Methods

Employer theft-prevention procedures such as "bag checks" are common across a range of industries. Employers can implement different processes to deter internal theft. For example, some employers conduct frequent cash-counting and auditing of point-of-sale (POS) records; some require employees to hold personal items in transparent bags while on premises; some monitor video of employees; while others use metal detectors.

These procedures differ in how they may impact employee activity, whether they constitute compensable time, and whether they are carried out while the employee is clocked-out. Employers who use a security-related process can collect data regarding the specific activities employees perform and their durations. One approach we use to study employee activity is observation. To collect additional contextual information that may be relevant to an evaluation, we often use self-report tools, such as structured interviews and surveys. These methods are discussed further below.

Observation Studies

A time and motion observation study involves trained job analysts directly observing employee activities and recording detailed information about those activities. The result is a detailed record of all activities performed, their durations, and additional contextual information.

The two primary sources of data we use for observation are live (i.e., in person) and video. Live observation can result in the collection of detailed contextual information. For example, when on site, an observer may be able to interpret auditory information and interactions among employees that may be relevant to the study. A bell may chime at the start of a work shift (which may not be detectable on video). When on site, the observer typically has the ability to move with the employee as needed and to track activities performed in multiple locations. Depending on the retailer, for example, bag checks can be conducted wherever a manager happens to be in the store.

In contrast, when studying a stationary metal detector near an exit door, it may be possible to observe employees in the same location, possibly from a single video camera. Further, using video enables the observer to track multiple employees through the use of pause, rewind, and slow-motion functions. Last, using video may allow the observations to be repeated for verification.

Employee security checks typically occur when the employee is exiting the premises, often at a break or at the end of shift. Depending on the company's practices, these events may occur at predictable times each day, allowing an observer to target these relevant time periods rather than studying an entire work shift.

Each observation can result in a detailed list of tasks performed. For example, an activity performed before the bag check can be tracked, as well as the timing of the bag check itself. This detail may provide insight into a common or unique circumstance that could influence the frequency and duration of the activity of interest. Typically, each activity performed by the employee is recorded, as well as the time that the task began and ended, the task duration, and whether the task was performed on or off the clock. Examples of possible task statements from an observation record include:

• Ring customer purchases at register.

• Sign-off of register and clock-out.

• Walk to back of store to check work schedule.

• Check work schedule.

• Walk to front door.

• Wait at front door for supervisor to conduct bag check.

• Undergo bag check by supervisor.

• Walk out of store.

Once employee activities are recorded, the data can be grouped into categories for analysis. The data from each employee can be compared and evaluated. The data may show, for example, that the duration of the security check process is similar for all employees. In contrast, the data may also show that one employee spends a brief period undergoing a security check, while another security check takes more time, and yet other employees do not experience a bag check at all. This variation may be explained by the additional information collected during the observation. The observation record may show, for example, that one employee did not have a bag with him/her when exiting the store, while another employee carried multiple bags, and the security check of the employee with multiple bags likely took more time to complete. Contextual information can be informative and can assist with interpreting employee activity appropriately.

Self-Report Data Collection

Self-report tools, such as structured interviews and surveys, can be developed and administered to collect additional data which may not be captured during an observation. For example, details regarding the factors considered when decision making, or the rationale behind performing a specific activity may be investigated. These methods may also be used to assess factors that may be relevant to a compensable time evaluation based on the Frlekin ruling, such as the degree of the employer's control on the employee's actions and whether the activity is enforced through disciplinary measures. Both methods can be conducted in-person or remotely across multiple locations.

Conclusion

Data can be collected and analyzed to study the specific employee activities associated with different security check processes, as well as the other factors the court has identified as relevant to a compensable time evaluation. Conducting an employee study can provide employers with valuable information that they can use as an opportunity to make informed decisions about their internal theft-prevention strategy and practices. The methods described above are examples of how employers can conduct such an employee study. 

The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC or its other employees and affiliates.

Elizabeth Arnold, M.S., is a director in the Labor and Employment Practice at Berkeley Research Group (BRG) and has been advising clients on issues related to employment practices and wage and hour compliance for nearly 20 years.