Every now and then, an employer will feel it necessary to check employee bags before staff can leave the facility. This is often due to suspicion of theft and is sometimes a safety precaution to ensure hazardous materials or items don’t leave the workplace by accident. However, there is a current controversy over whether the time spent having one’s bag checked or waiting in line for bag-checking should be paid.
Many employers try to deny payment for bag check time, arguing that no work is getting done so they should not pay. But is this legal? The answer is that unpaid bag checks are only legal sometimes under very specific circumstances. In all other cases, bag checking is a mandatory work activity and therefore must be paid like a work activity. In full.
Let’s take a closer look at what makes an unpaid bag check legal or illegal.
Unpaid Bag Checks are Legal When:
Bringing a Bag is Voluntary for Employees
In 2015, Apple successfully argued that employees were allowed to bring bags, but not required. Therefore, bringing a bag was seen as employees volunteering to have their bags checked. This is valid as long as all bags are completely optional and those without bags can skip the bag check line to leave promptly without waiting.
Bringing a Bag is Not Necessary for Medical Reasons
The previous rulings on optional bags did not cover medical necessity. Un unpaid bag check for ‘voluntary’ bags may only be valid if the bag is not required for medical purposes.
Bag Check Policy is Made Clear and In Writing
Employers cannot simply start taking your time to search bags. A new policy must be written and made clear so that employees can start choosing not to bring bags or planning to not carry bags when arriving or departing instead of going through the check.
Unpaid Bag Checks are Illegal When:
Bringing a Bag is Mandatory
If employees are required to carry a bag for work and then that bag must be searched, this means the time spent during the search is mandatory rather than voluntary. These employees don’t have a choice, they cannot choose to not carry the bag. Therefore, they cannot choose to avoid the bag check line. This means they must be paid for mandatory time spent at work.
All Employees are Checked, Bag or No Bag
In many workplaces, employees must line up for the check before exiting whether or not they brought a bag. If the wait is necessary or if pockets as well as bags are checked, both are considered a mandatory delay. Mandatory delays must be paid, even if bags are only checked if an employee who has waited in line has a bag.
An Employee’s Bag is Medically Necessary
If an employee is medically required to carry a bag and then they are forced to wait for bag check due to this necessity, an unpaid bag check could be seen as discrimination. While other employees may ‘volunteer’ for bag checking unpaid, employees who medically must carry a bag are being forced to spend unpaid time at work for something they cannot control or volunteer to avoid.
Bag Check Policies are Not Made Clear Before the Check
Surprising employees with bag check policies or random checks so that they cannot choose to avoid the check is also illegal. If the policy has not been made clear in writing and clearly explained, then employees can’t voluntarily avoid or agree to the check. The only exception is if the policy, written and made clear, includes randomization to the bag checking days.
Bag Check Policies Encroach on Legal Breaks
Employers must provide employees with two ten minute breaks and one half-hour break per eight-hour shift. Bag checks cannot be used to deny employees their rest time, especially of the ten-minute breaks where waiting for a bag check can eat the entire paid break period.
Employees Hours are Cut for Bag Check Time
Finally, employees cannot cut your hours below minimum in order to deny you payment for bag checking time. If you are forced to clock out early so that bag checks can be done ‘on time’ or clock in late after bag-check then forced to leave ‘on time’, this nickel-and-diming practice can become illegal. Particularly if it lowers your hours below minimum weekly hours, minimum pay for the week, or defies your employment contract.
Is your time being stolen by illegal unpaid bag checking policies? Let us help! Here at Aiman-Smith and Marcy, we are dedicated to defending employee rights from the penny-pinching policies of exploitative employers. Your time is valuable to you and you deserve to be paid for mandatory or abusive bag checking policies. Contact us today to find out more.