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On September 2, 2020, the Ninth Circuit Court of Appeals handed down another blow to California employers on what time spent “working” includes. In Frlekin v. Apple, five employees filed a wage and hour class action, alleging that Apple failed to compensate them for time spent waiting for and undergoing exit searches. While Apple attempted to persuade the Court by arguing that the employees did not need to be compensated as they voluntarily bought personal belongings to work, the Court ultimately sided with the employees.
According to the lawsuit, Apple implemented an “Employee Package and Bag Searches” policy in which all employees were subject to personal package and bag searches prior to leaving for the day. Although the search was lawful, the Court found the time spent complying with the policy fits within the definition of “hours worked.” “Hours worked” generally means the time during which an employee is under the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. As the searches are imposed primarily for Apple’s benefit and are enforced through threat of discipline, the Court determined that the policy involved a significant degree of control. Therefore, the employees should have been compensated for the time spent waiting for and undergoing searches. You may read the full opinion here.
COUNSEL TO MANAGEMENT:
This decision is a reminder to employers that complying with California wage and hour law is often a moving target. Employers should work with competent counsel to discuss the structure and daily operations of your business to determine the controlling law. If you have any questions about the application of California wage and hour laws, contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.

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