Exit Searches by Employer is Compensable Under CA Law

Today, Attorney, Adem Balikci, reviews a recent California Supreme Court decision involving exit searches by employer. This decision could have a significant impact on payroll decisions for employers (primarily retail businesses) that now may be liable to pay wages during the exit searches. This is yet another example of how the law in California is developing related to the employee-employer relationship.

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Exit Searches by Employer is Compensable Under CA Law
By: Adem Balikci, Esq.

In our prior employment law blog topic, we discussed that travel under employer’s control was compensable and advised our clients to update their policies accordingly. Today, we analyze the California Supreme Court’s recent decision, Frlekin v. Apple, Inc., regarding whether non-exempt employees undergoing mandatory bag or other security checks is compensable work time under California law. In Frlekin, the California Supreme Court held that the time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees is compensable as “hours worked” under California law concerning the retail industry. This decision is outright in contrast to U.S. Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk’s case, where the Court decided that time spent awaiting bag checks was not compensable time under the Fair Labor Standards Act.

In the Frlekin case, a group of Apple Employees brought a class action against Apple claiming that they are entitled to pay for the time waiting while undergoing security searches of their bags and any personal technology devices, such as their iPhone, prior to leaving the work. The class member employees estimated the searches took between five and 20 minutes regularly, and up to 45 minutes when stores were busy. Nonetheless, the district court granted Apple’s motion for summary judgment, holding that the time spent waiting and undergoing a bag or security check was not compensable, reasoning that, for time to be “hours worked,” it must be time in which the employer restrains the employee’s action and the employee has no plausible way to avoid the activity. Because employees could avoid security checks by not bringing bags or personal effects into work, the trial court determined the activity was primarily for the benefit of the employees.

In reaching its decision, on the other hand, the Supreme Court determined that time spent during bag or security checks was time subject to the employer’s control because Apple made employees find and flag down a security guard to conduct the search and confined employees to the premises during the search, and although the bag search was not “required” because employees could choose not to bring a bag, the search was required as a practical matter because employees routinely bring personal belongings to work including their iPhones. The Court further stated that the required searches primarily serves Apple’s (the employer’s) interests. The exit searches are imposed mainly for Apple’s benefit by serving to detect and deter theft. In fact, they are an integral part of Apple’s internal theft policy and action plan.

More importantly, the Court expressly stated that its ruling applies retroactively. This means that even if an employer doing business in California were to revise its exit search policy today in light of Frlekin, it may still be subject to a claim for unpaid wages, with the relevant statutes of limitations reaching back as far as four years.

As a result, employers that conduct bag or similar security checks should review their policies to comply with this California Supreme Court decision.


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in probate, business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.