Ninth Circuit Ruling Regarding Employee Searches Differs from FLSA Interpretation

In 2014 the U.S. Supreme Court in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), held that security checks were not compensable under the Fair Labor Standards Act (FLSA) and the companion law, the Portal to Portal Act. Congress has not acted to overturn the federal law, and so this decision remains in place for the FLSA and the Portal to Portal Act.

Recently, the Ninth Circuit Court of Appeals took a look at the California law, and found that the law held Apple to a different legal standard. The case was remanded to the California court for a final decision. The California court in Frlekin v. Apple Inc., (CA. 2020) held that Apple must pay back wages to the employees that sued to be paid for time spent at work while their bags are searched.

Employees at Apple bring bags and iPhones to work. Each day before they leave work, both their bags and phones are subject to a search by security personnel. On average, this takes as little as five minutes and much as 20 minutes. On a particularly busy day, it can take up to 45 minutes. Employees sued Apple and lost at the district court level. This case was taken up to the 9th Circuit Court of Appeals, and after reviewing California law, that court determined that the time employees spent waiting for their bags and  iPhones to be searched was compensable. This was despite Apple’s arguments that it was the employees’ choice to bring bags or cellphones to work.

Employers who have employees in California can no longer rely on the US Supreme Court case, meaning that search time must be paid in California. Be on guard: you never know when the state laws may change. Employers Council will continue to alert you to changes as they happen.