86 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com can only be cited for its persuasive value and for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to choose between sides of any such conflict. While neutral time rounding technically remains lawful in California (for the time being), rounding is not lawful when applied to meal periods. In Donohue v. AMN Services, LLC, the California Supreme Court reversed a Court of Appeal decision that meal period times can be rounded.420 Donohue held that rounding is improper in the meal period context, as even a slightly short meal period is not consistent with the requirement to provide a full 30minute meal period. The general neutrality standard set forth in See’s Candy thus does not apply in the meal period context. D. Compensability of Time Spent in Security Checks Plaintiffs’ lawyers have argued that California retailers must compensate nonexempt employees for time spent undergoing security inspections as they leave the store. A 2014 U.S. Supreme Court decision, Integrity Staffing Solutions v. Busk, held that the time that warehouse employees spent waiting to undergo security screenings was not compensable under the FLSA. The Supreme Court reasoned that the screening activity was not “integral and indispensable to the principal activities that an employee is employed to perform,” and thus was exempted from FLSA requirements by the Portal to Portal Act of 1947.421 California, however, has no exemption analogous to that applied in Busk, and makes an employee’s time compensable whenever the employee is “subject to the control of an employer” or is “suffered or permitted to work.”422 While California employers had hoped that reasoning similar to the Busk holding might apply to Labor Code claims, recent decisions from the California Supreme Court and Ninth Circuit have forced employers to check their hopes at the door. In Frlekin v. Apple, a federal district court considered whether the time that store employees spent waiting for and undergoing security bag checks when leaving the store was compensable under the California Labor Code.423 Concerned with internal theft, Apple, like many retailers, implemented a policy that imposed mandatory searches of employees’ bags, such as purses or backpacks, whenever employees left the stores. Apple also required that an employee’s personal Apple devices be verified as the employee’s own before exiting the store. Employees had to clock out before undergoing a bag check and, therefore, as a general rule, received no compensation for the time involved in checking bags.424 The district court granted Apple’s motion to dismiss the bag check claim because the employee could avoid the bag checks by not bringing a bag to work and as to the time associated with the bag checks Apple employees were “suffered or permitted to work.” Rather, they “merely passively endured the time it took for their managers and security guards to complete the peripheral activity of a search.” The district court found the U.S. Supreme Court’s Integrity Staffing v. Busk decision—which was decided under the FLSA—useful on this point. 420 Donohue v. AMN Services, LLC, 11 Cal. 5th 58 (2021). 421 Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014). 422 Morillion v. Royal Packing Co., 22 Cal. 4th 575, 582 (2000). 423 Frlekin v. Apple, Inc., 2015 WL 6851424 (N.D. Cal. Nov. 7, 2015). 424 Id. at *1-2.
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