U.S. District Judge William Alsup, Northern District of California
U.S. District Judge William Alsup, Northern District of California (Hillary Jones-Mixon)

SAN FRANCISCO — Apple attorneys attempted to derail an employment class action pending in federal court Thursday, arguing the company’s retail employees aren’t entitled to wages for time spent in security checks because the checks aren’t mandatory.

Apple dictates employees who bring bags or personal Apple technology to work must submit to security screenings before leaving the store. But employees who choose not to bring such items are not screened, Julie Dunne, cochairwoman of Littler Mendelson’s retail practice group, told U.S. District Judge William Alsup.

“People are bringing laptops so they can watch movies on the bus or during their breaks,” Dunne said. “They’re bringing their iPods so they can listen to music.”

A potential class of thousands of Apple Inc. employees is seeking compensation for time spent waiting in lines to have their bags and personal Apple devices checked, as a theft-prevention measure, after they clocked out. If Alsup finds those security checks were required, as plaintiffs attorneys with New York’s McLaughlin & Stern claim, Apple could be on the hook to pay wages for that time under the Fair Labor Standards Act.

Alsup seemed to relish playing devil’s advocate during Thursday’s hearing.

First he questioned the plaintiffs’ assertion that employees need the items they bring to work. “I got along for 60 years without a cellphone,” Alsup said. “Why is it so important that someone has a cellphone?”

But later he asked Dunne: “Could someone argue that maybe it’s not so easy to leave those things behind, and it’s a necessity of life?”

Apple insists the screenings are optional. “Because Apple does not require any employee to bring a bag or personal Apple technology to work, employees who report to work without bags or personal technology are fully capable of performing their jobs,” Dunne’s team wrote in its motion for summary judgment.

McLaughlin & Stern partner Lee Shalov argued Thursday that Dunne was skewing the law. Apple employees are required to submit to security screenings. Whether they can avoid those screenings by sacrificing and leaving important items at home is immaterial, he told Alsup, who is presiding over Frlekin v. Apple, 13-3451.

“Now they want to add a whole new requirement to the mandatory cases,” Shalov said. “And how do they do it? They engage in some sleight of hand. It’s very clever.”

If Alsup sides with Apple, the results could be absurd, Shalov said. To illustrate the repercussions, he referenced a pending Supreme Court case in which employees were not compensated for time spent waiting to pass through metal detectors: Integrity Staffing Solutions v. Busk.

“By Apple’s reasoning, the security screenings in Busk would not be compensable because employees can ‘choose’ not to wear clothes to work, and, therefore, can avoid the company’s metal detectors,” he wrote in his team’s brief. “Similarly, employees can theoretically ‘choose’ not to have hair and thereby avoid spending time needed to don protective headware.” In March, Alsup denied plaintiffs’ request to stay proceedings in this case until Busk is decided.

Alsup promised to rule on summary judgment within a week.

In their motion, Apple’s attorneys also brought up the employment history of the suit’s four named plaintiffs. Amanda Frlekin, who resigned from Apple in 2013, was counseled for taking excessively long breaks, which she lied about, and calling her manager a “cunt,” according to Apple attorneys. Adam Kilker was fired in 2013 for engaging in a scheme where he bought merchandise with his employee discount and returned it at another store for full price, according to the motion. Dean Pelle was fired in 2013 after engaging in a heated confrontation with a customer, and admitted he filed the suit as revenge, according to Apple attorneys. And Apple staff gave Brandon Fisher the option to resign in 2012 instead of being fired for continued performance problems, according to the motion.

Alsup did not address the plaintiffs’ employment history on Thursday.

Shalov declined to comment after the hearing. Dunne referred comment to Apple, and Apple did not immediately respond to an emailed request for comment.

Contact the reporter at mkendall@alm.com.