Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 87 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.428 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.429 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. The decision was appealed to the Ninth Circuit, which certified to the California Supreme Court the question whether “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 [is] compensable as ‘hours worked’”?430 The California Supreme Court, in Frlekin, unanimously answered in the affirmative. Ultimately, Frlekin addressed only the issue of employee control, explaining that an employee need not be working to be subject to the control of an employer and thus entitled to pay.431 Frlekin disagreed with Apple’s argument that an activity must be “required” or “unavoidable” to be compensable and, in any event, found that employees have little choice in bringing their cell phones to work, citing Apple’s own words regarding the indispensability of an iPhone.432 Frlekin also addressed employers’ use of Integrity Staffing in support of their argument that time spent undergoing security checks is non-compensable, stating that the United States Supreme Court decision in Integrity Staffing is neither persuasive or dispositive in that California provides employees with greater protection than does federal law.433 Fortunately for employers, in 2021, the Ninth Circuit recognized some limits to the compensability of security check time. In Cazares v. Host Int’l, Inc., the plaintiff worked for a vendor within Los Angeles International Airport.434 The plaintiff sought compensation for time spent passing through airport security checks en route to his workstation inside the airport. The district court dismissed the claim, and the Ninth Circuit affirmed. Citing Frelkin, 428 Frlekin v. Apple, Inc., 2015 WL 6851424 (N.D. Cal. Nov. 7, 2015). 429 Id. at *1-2. 430 Frlekin v. Apple, 8 Cal. 5th 1038, 1042 (2020). 431 Id. at 1046. 432 Id. at 1055 (“Apple has publicly agreed with the high court’s description of cell phones, joining an amici curiae brief filed in Carpenter that characterized smartphones as ‘practical necessities of modern life,’ ‘fundamental tools for participating in many forms of modern-day activity,’ and ‘not just another technological convenience.’”) (citations omitted). 433 Id. at 1050 n.4. 434 Cazares v. Host Int’l, Inc., 2021 WL 3667227, at *1 (9th Cir. Aug. 18, 2021)
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