Such security screenings have led to a host of class actions and collective actions alleging that non-exempt employees are entitled to be paid for the time spent undergoing these searches. In defending against these claims, employers have argued that the time spent during these searches is too de minimis to be compensable, relying on the recognized federal principle that small increments of time are not compensable.
However, the
Apple, like many retailers, required its employees to clock out prior to undergoing the exit search of packages, bags, or personal technology devices, which employees estimated took anywhere between 5 to 20 minutes and up to 45 minutes, depending on personnel availability.
In reaching its decision, the
- Apple confined employees to the premises during the search;
- the exit searches were required as a practical matter because employees routinely bring personal belongings to work including their iPhones;
- the searches were imposed primarily for Apple's benefit; and
- employees were subject to discipline if they failed to comply.
Importantly, the Frlekin decision is retroactive, meaning that its ruling will be applied to subsequently litigated cases, regardless of whether the events at issue occurred prior to or after the Frlekin decision. As the risk of employee theft continues to increase with the proliferation of technology, employers that conduct bag or security screenings must be cautious of this recent decision and should review their policies and practices to evaluate whether such time should be compensable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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