An increasing number of retail employers in California have begun enforcing employee bag checks when employees leave for the day and, sometimes, any time an employee leaves the premises for lunch or breaks. On its face, this is a little intrusive but otherwise legal. However, there is a serious question at play as to whether employees can and should be paid for the time they spend waiting in line or for a manager so their bags can be checked.
If you and your colleagues are being subjected to bag checks off the clock, we’re here today to let you know whether that lost time should be compensated and what to do if you are being underpaid for mandatory extra time spend at work.
California Law on Compensation for Bag Check Time
First, it’s important to note that California law draws a fine line between mandatory bag check time and “voluntary” bag check time. If the time spent waiting for your bag (or person) to be checked can be construed as voluntary, then the law may side with your employer on compensation not being necessary. However, mandatory bag checking becomes a part of your job description and should be rightfully paid.
Voluntary vs. Necessary Bag Checking
If your employer can prove that you voluntarily participated in bag checking, then it is likely they can refuse to pay you for check-time. For example, in 2015, Apple successfully argued that employees were granted the privilege to bring in a bag. Only if they chose to exercise that privilege were they subject to the off-the-clock bag check.
However, this did not cover employees who might have a medical requirement to carry a bag. Nor does the 2015 ruling address situations where employers require all employees unilaterally to be subject to a check. Whether this is a mandatory pocket check or for employees required to carry a bag for work purposes.
According to the law, if the time spent in line is absolutely required and there is no “voluntary” choice that can allow you to avoid it, you DO need to be paid for that time. This means that employers who check every single employee even if they don’t carry a bag are required to pay you for time spent waiting. Employees who require you to carry a bag and then require you to have the bag checked must then pay you for time spent waiting and being checked.
How to Avoid Waiting for Unpaid Bag Checks When Carrying a Bag is “Voluntary”
The first piece of advice we can give is for employees whose employer can make a reasonable argument that bag checks are avoidable. If you tend to carry a bag or purse for personal items and only bags are checked, there are ways around waiting in the bag check line each time you want to leave the store.
Reduce the things you come and go with to what can be carried in your pockets. Phone, wallet, keys, and medication only.
Stock up on items you usually carry in your bag to keep in your locker or desk instead. This may require buying two of items you have traditionally had one mobile version of, but it will keep you from losing 15+ minutes at the door every day. If necessary, get yourself a zipping and locking bag to hold all your personal items that always remain at work. When you finally leave for good, you’ll only need to wait through one bag check instead of hundreds.
Supplies that get used up should come in and be stored instead of coming and going. If your boss is cool, consider talking to them about a reasonable place to stash your stuff if you don’t have an assigned desk or locker. If your coworkers are in on it, consider teaming up to share a cubby-supply of certain items instead of packing them in checked bags.
What to Do If Your Employer is Refusing to Pay for Unilaterally Mandatory Bag Checks
Finally, there’s what you can do if your employer is making bag-check time unavoidably mandatory and are insisting that bag-checks happen off the clock. This is illegal. Just as your employer is required to pay you for being on-call, even if that time isn’t spent “working”, they are required to pay you for any time that isn’t your own that cannot be avoided with “voluntary” choices.
If your employer is forcing you to spend unpaid time at work, you can form a class action with all your other coworkers subject to the same policies. A class action is even more powerful than a single legal complaint because it shows that the employer is blatantly defying California employee compensation law. Those exploring their legal options to demand rightful compensation should bring their concerns to an experienced California employment law attorney.
Here at Aiman-Smith & Marcy, we have worked hard to help both individual employees and unified employee class actions to find the justice they deserve and we look forward to hearing about your situation. If you are being subjected to mandatory unpaid bag checks or checks of your person, please contact us today. We can help you determine your options, form a class action, and hold your employer accountable for their unlawful actions.