In Frlekin v. Apple, the Ninth Circuit Court could not determine the cases, and submitted to the California Supreme Court the question of whether time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees is compensable as “hours worked” within the California IWC Wage Order No. 7. All Apple employees are subject and required to have their personal packages and bags searched before leaving the store, shall the employee voluntarily choose to bring such an item with them to work. Failure to do so will result in sanctions and/or termination. Employees currently receive no compensation for time waiting for and undergoing searches, because they must clock out before undergoing the search. The district court ruled that the time spent for the search is not compensable as “hours worked” under California law because the employee was not “subject to the control” of the employer nor were employees “suffered or permitted to work” during such a time. Since an employee may avoid such a search by declining to bring a bag or package into the workplace, the search is not “required” by Apple.
The Defendant argued that this argument was supported in Morillion, where Royal required employees to utilize the company’s transportation, and thus the time was compensable. However, had Royal not mandated the bus rides of its employees, the time would have not been compensable. The Ninth Circuit Court believes that the search is voluntary in that the Apple employee can decide not to bring a personal item to work, although the employer exercises control over the employee who does choose to bring a personal item to work. Therefore, the Ninth Circuit Court submits the judgment of the case to the California Supreme Court to rule on the final decision of the case.
This case is currently awaiting California Supreme Court acceptance and opinion.