In Frlekin v. Apple, 2020 WL 5225699, the Ninth Circuit, in conjunction with the California Supreme Court, ruled that time spent waiting for and undergoing exit searches of bags qualified as “hours worked” under Wage Order 7 and, thus, required compensation.
Apple retail stores had a policy in place requiring that all employees submit to a bag search prior to leaving the store. Although some employees reported wait times of up to forty-five minutes, the employees, who had non-exempt status, would typically wait somewhere between five to twenty minutes to be searched.
The California Supreme Court accepted the Ninth Circuits’ certified question, after reformulating it as follows:
Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of Wage Order 7?
Answering affirmatively, the California Supreme Court focused on the language of Wage Order 7. Wage Order 7 states that an employee shall be paid for hours worked or “time during which an employee is subject to the control of an employer, and includes all time that the employee is suffered or permitted to work whether or not required to do so.” Apple’s searches fell under this definition because the searches were required, they occurred at the work place, they were for Apple’s benefit, they were enforced through discipline, and because Apple exerted a “significant” degree of control in conducting searches.
It is likely that in a post Frlekin world, employees subject to a required exit search would be entitled to compensation.