Exit Searches Count as Working Time, California Supreme Court Concludes

Author: Michael Cardman, XpertHR Legal Editor

February 18, 2020

California employers that inspect nonexempt employees' personal belongings after they clock out should reevaluate the practice in light of a new opinion from the state's highest court.

In Frlekin v. Apple, the Supreme Court of California held that the time employees spend waiting for and undergoing required exit searches of packages, bags or cellphones they voluntarily bring to work counts as compensable working time under California law.

The case involved employees of Apple retail stores who were subject to personal package checks whenever they exited the store for any reason - whether a break, a meal or the end of their shift. These searches took as long as 45 minutes, and employees were not paid for the time.

California's wage orders require employers to pay employees a minimum wage for all hours worked, defined in part as "the time during which an employee is subject to the control of an employer."

To determine whether an employee is subject to an employer's control in cases involving onsite activities, the court said it would consider factors including, but not limited to:

  • Whether the activity is mandatory;
  • The location of the activity;
  • The degree of the employer's control;
  • Whether the activity primarily benefits the employee or employer; and
  • Whether the activity is enforced through disciplinary measures.

Applying these factors, the court reasoned that the employees were subject to Apple's control while waiting for and while undergoing the company's exit searches:

Apple's exit searches are required as a practical matter, occur at the workplace, involve a significant degree of control, are imposed primarily for Apple's benefit, and are enforced through threat of discipline.

The Frlekin ruling marks another area in which employees are treated more favorably under California law than under federal law. In its 2014 Integrity Staffing Solutions, Inc. v. Busk ruling, the US Supreme Court held that a group of Amazon warehouse workers did not need to be paid for time spent undergoing mandatory anti-theft security screenings after their work.