Jessica Karmasek Nov. 11, 2015, 12:41pm


SAN FRANCISCO (Legal Newsline) - A California federal judge has dismissed a wage-and-hour class action lawsuit filed against Apple over the company’s anti-theft measures -- in particular, its employee “package and bag searches” policy.

The ruling means the technology giant won’t have to compensate more than 12,000 former and current Apple store employees for the time they spent having their bags and devices checked at meal breaks and after their shifts.

In his 19-page order, Judge William Alsup for the U.S. District Court for the Northern District of California said the workers could have avoided the searches altogether by not bringing any bags with them.

“Plaintiffs could all freely choose not to bring bags to work, thereby avoiding Apple’s restrictions during exit searches,” the judge wrote in his Nov. 7 order. “That free choice is fatal to their claims.”

The plaintiff class sought compensation for the time spent undergoing exit searches pursuant to Apple’s bag-search and technology-card search policies and for time spent waiting for the searches to occur.

The searches were done when employees left the premises with a bag, purse, backpack or briefcase, or with an Apple product, such as an iPhone.

The company searched them to see if Apple goods were being pilfered.

Employees had to clock out prior to undergoing a search, and their recorded hours worked did not account for the time waiting for a search to be completed. Accordingly, employees received no compensation for the time involved in the searches.

At issue was whether the time spent waiting for the exit searches to be completed deserved any compensation under California law.

The plaintiffs filed the lawsuit in July 2013. In April 2014, Apple moved for summary judgment against all individually-named plaintiffs for all claims. Summary judgment as to plaintiffs’ California state-law claims was denied in light of varying fact patterns regarding the duration of wait times and individualized reasons for bringing a bag to work.

The non-California claims were stayed and ultimately dismissed following the U.S. Supreme Court’s decision in Integrity Staffing Solutions Inc. v. Busk last year.

The nation’s high court, in an unanimous decision, held that time spent by workers waiting to undergo anti-employee theft security screenings is not “integral and indispensable” to their work, and thus not compensable under the Fair Labor Standards Act.

Because the other state law claims all mirrored the FLSA, only plaintiffs’ California claims remained. The Northern District of California then retained supplemental jurisdiction over the remaining state-law claims.

In July, Alsup certified the class, ruling that a handful of ex-employees could proceed on behalf of the class. The order also gave both sides a second opportunity to move for summary judgment.

Alsup pointed out in his ruling that the class pursued compensation based on a scenario in which personal effects were taken to work willfully and for their own convenience.

Also, he noted, although the order certifying the class and the class notice invited class members to intervene to assert claims based on “special needs scenarios,” no one intervened.

“Plaintiffs contend the freedom to bring a bag to work is not an affirmative benefit, but rather a standard freedom of the job,” Alsup wrote. “On the other hand, Apple was concerned that its employees could pilfer merchandise in their bags or claim that they already owned any Apple products they carried out of the store.

“Apple could have alleviated that concern by prohibiting its employees from bringing personal bags or personal Apple devices into the store. Instead, Apple took the lesser step of giving its employees the optional benefit of bringing such items to work, which comes with the condition that they must undergo searches in a manner dictated by Apple before they exit the store.”

Lee S. Shalov, partner at New York law firm McLaughlin & Stern, served as lead counsel for the plaintiffs.

“Plaintiffs are disappointed with the court’s ruling and are considering their options, including an appeal,” he said in an emailed statement.

Apple declined to comment on the judge’s order.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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McLaughlin & Stern LLP
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