Is it legal for employers to hold you for security bag checks after you clock out? This has been a debate raging since 2009 when a class action against Apple of now-over 12,000 employees formed concerning mandatory bag checks. Initially, the lower courts ruled that Apple did not have to pay their employees for the 5-45 minute wait for a security bag check at every single break and end-of-day departure from the store. However, when the issue was raised with the California Supreme Court, new considerations were brought to light.
As of February 14, 2020, Apple’s bag checks and many other mandatory off-hours procedures were deemed ‘work hours’ and therefore require pay when controlling employee time. This is a big win for non-exempt employees whose time is often abused by employers with little regard for fair compensation or work-life balance. However, many employers have yet to realize or embrace the new policies and are in violation of the latest fair labor legal standards.
Here’s how the story played out and why employers must now pay for security bag checks and other off-hours mandatory activities:
Apple Argues that Bag Checks are “Optional”
Initially, Apple won their defense against the class action by arguing that bringing a bag of personal items into the store was optional for employee convenience. Therefore the mandatory bag checks at every single break and end-of-shift departure was technically voluntary. They even went so far as to argue that the security checks were for the employee’s benefit because bringing a bag into work was a privilege they chose to exercise.
Disregarding the fact that most people need a bag of personal items to enjoy work throughout the day, this argument held up temporarily in the lower courts on the merit that bringing a bag (that must then be checked) was optional and therefore the checks were voluntary.
The Parking Shuttle Defense
Apple also referenced a similar case where employees lost the battle for compensation of off-the-clock work activities. They brought up the case of employees taking a provided shuttle from a distant parking lot to their workplace was not considered “work hours” and therefore would not be paid. However, the key elements of the shuttle were that employees could choose not to use the shuttle and could even save time by being dropped off instead of parking, and that the shuttle was provided primarily for the employee’s benefit, not the employer.
The California Fair Labor Standards vs Apple
However, what Apple didn’t count on was elevation to the California Supreme Court where the case was examined in strict adherence of the FLSA – Fair Labor Standards Act. The FLSA states that a non-exempt (not on salary) employee must be compensated not only for time when they are working but also time when the employer is in control of an employee’s schedule and activities.
This aspect of the FLSA, for example, is used to enforce pay for on-call shifts where employees cannot make other plans even if they are not called into work. When the birthday party test is applied (could you be at a child’s birthday party when off the clock?), Apple’s security checks fail the standards.
In this case, several factors were examined to determine that Apple was, in fact, in control of employee time to Apple’s primary benefit (not the employees’) during bag check procedures.
- The bag checks benefitted Apple’s loss prevention plan with no benefit to employees
- Many employees must bring in a bag for personal or medical reasons, optionality was not solid ground
- The bag checks took place on-premises
- Employees with bags were not permitted to leave until their bags were checked
- Disciplinary action was taken if a bag check was not conducted
Together, these factors caused the Supreme Court to identify that Apple was, in fact, in control of employee time and was therefore obligated to pay for bag checks that had previously taken place after clocking out.
The New Standards for Assessing Mandatory Activity Pay
What’s even better for employee rights as a result of this ruling is that new standards for off-the-clock activities have been put into place.
Now, what is and is not “work hours” must be assessed by how much control employers exercise over employee time and freedom for any number of previously off-the-clock activities. From security checks to mandatory uniform changes, if your employer is forcing work activities without pay, they may be in violation of the new standards.
- Employer dictates the location and activities of the employee
- Activities primarily benefit the employer, not the employee
- Disciplinary action is taken if activities are skipped
- Activity takes place on work premises
- Activity is unavoidable or mandatory in all or most cases
Receiving Fair Compensation for Off-the-Clock Activities
If and/or your coworkers are being subject to forced activities off the clock, your employer may be in violation of the new fair labor standards dictated by the California Supreme Court. Here at Aiman Smith & Marcy, we are dedicated to helping all California employees receive fair rights and pay in accordance to the most recent labor laws and standards. Contact us today to consult on your situation and find a remedy for unpaid time controlled by your employer.
