SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit has asked the California Supreme Court to weigh in on whether state law requires Apple Inc. to pay workers at its retail stores for time spent waiting for security checks at the end of work shifts.
U.S. District Judge William Alsup of the Northern District of California previously granted Apple’s motion for summary judgment in the underlying lawsuit in November 2015, finding employees chose to submit to the anti-theft screenings by opting to bring bags and personal Apple products to work.
But in asking the California Supreme Court to take up the question Wednesday, a Ninth Circuit panel found no clear answer in state precedent about whether that time should count as “hours worked” under California law.
“Although the search is voluntary in that the employee could have avoided it by leaving his or her belongings at home, the employer nevertheless exercises control over the employee who does bring a bag or package to work,” wrote the three-judge Ninth Circuit panel that included Circuit Judges Susan Graber and Michelle Friedland, and U.S. District Judge Consuelo Marshall of the Central District of California, who was sitting by designation.
Although the U.S. Supreme Court held in a 2014 case involving Amazon.com Inc. that employers do not have to pay workers for time in post-shift security checks under federal labor laws, California’s labor laws are generally more worker-friendly. Kimberly Kralowec of The Kralowec Law Group, who represents the plaintiffs in the Apple case pointed out the Ninth Circuit listed 10 recent cases that have raised issues about how the governing state law—the California Wage Orders—apply to a variety of employment security checks.
“It would be very helpful for the Supreme Court to provide further guidance on this issue,” said Kralowec, who had urged the Ninth Circuit to route the question to California’s high court.
Julie Dunne of Littler Mendelson, who argued the appeal for Apple at the Ninth Circuit, didn’t respond to a message Wednesday.