Publication Details

Special Alert: Time Spent Undergoing Employer-Required Exit Searches Is Compensable As “Hours Worked” Under Wage Order 7

Feb 18, 2020 | Related Attorney Valerie Phan | Topic: Employment

On February 13, 2020, the California Supreme Court held in Frlekin v. Apple, Inc. that the time retail-store employees “spent on the employer’s premises waiting for, and undergoing, required exit searches” was “compensable as ‘hours worked’ within the meaning of Wage Order 7.” Wage Order 7 (governing the mercantile industry) defines “hours worked” as “the time during which an employee is subject to 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.” 

In Frlekin, the employer’s bag search policy required employees to clock-out before submitting to a mandatory search of all their purses, backpacks, bags, and personal technology devices before leaving the store, or face disciplinary action including termination. Depending on manager or security guard availability, the employees estimated the time spent waiting and undergoing an exit search ranged from 5 to 20 minutes; some reported waiting as long as 45 minutes on the busiest days. 

The Court explained this time is compensable under the “hours worked” control clause because the employer controlled its employees while awaiting, and during, the exit searches in three ways: (1) employees who failed to comply with the bag search policy were subject to disciplinary action, including termination; (2) employees were confined to its premises as they wait for and undergo an exit search; and (3) employees are required to perform specific and supervised tasks during the search (e.g., unzip zippers and compartments and remove items for inspection). 

The Court rejected the employer’s assertion that an employee’s activity must be “required” and “unavoidable” in order to be compensable, finding an absence of such a requirement in both the language of the control clause, the history of the “hours worked” definition in Wage Order 7, and its earlier decisions.  It further reaffirmed its holding in Morillion v. Royal Packing Co., which held “ ‘[t]he level of the employer’s control over its employees, rather than the mere fact that the employer requires the employees’ activity, is determinative’ concerning whether an activity is compensable under the ‘hours worked’ control clause.” 

As a result of its conclusion that the employees were entitled to compensation under the control clause, the Court declined to provide its view on their alternative argument that the exit searches are compensable under the “suffered or permitted to work” clause in Wage Order 7.

Finally, the Court denied the employer’s request to apply its ruling prospectively, concluding it had not established reasonable reliance on settled law. 

This decision is unsurprising considering the Court’s recent opinion in Troester v. Starbucks Corporation, which held the Federal Labor Standard Act’s de minimis doctrine does not apply where employees work several minutes off the clock on a regular basis.   Employers who require their employees to undergo similar exit searches before leaving their premises should evaluate their policies to ensure employees are being appropriately compensated for their time spent waiting for, and during, the searches.

Do you have questions about how this update may affect you?  For further information contact:

Lois M. Kosch (lkosch@wilsonturnerkosmo.com

Emily J. Fox (efox@wilsonturnerkosmo.com)

Valerie Phan (vphan@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant developments in the law as they occur. This should not be considered legal advice.