Unexpected victory in bagging area: Apple must pay shop workers for time they spend waiting to get frisked
- Reference: 1599141606
- News link: https://www.theregister.co.uk/2020/09/03/apple_vs_frenkin/
- Source link:
[1]PDF
that Apple Store staffers should be paid for time spent waiting to undergo the iGiant's bag checks.It's the latest turn in a class action Apple has been battling for seven years, fending off retail workers that asked to be paid for up to 45 minutes spent at the end of their shift waiting to be searched.
If you thought that the firm had already won this fight, it's because the workers managed to take it all the way to the [2]California Supreme Court in February this year, which looked at the question of whether they should in principle be compensated for hanging around, unpaid, under state law, the California Industrial Welfare Commission Wage order. The order states that staff must be paid for "hours worked" under an employer's "control". The Apple employees were required to clock out before submitting to the exit search.
The appeals court ruling reverses a [3]decision from US District Judge William Alsup in favour of Cupertino , which was made on the basis that iStaffers weren't under Apple's control during searches and had "chosen" to bring bags to work and therefore subjected themselves to Apple's search policy.
Yesterday's unanimous 12-page opinion, written by Judge Consuelo B Marshall on behalf of the panel, said the district court had "erred" and reversed the finding, aligning itself with the Supreme Court decision.
The wage-and-hour class action was brought by thousands of California-based Apple staffers in a suit [4]certified in 2015 but first brought in [5]2013 . The filing noted that some "employees reported waiting up to forty-five minutes to undergo an exit search. Employees receive no compensation for the time spent waiting for and undergoing exit searches, because they must clock out before undergoing a search pursuant to the Policy."
The panel said Apple's contention that some class members "did not bring bags or devices to work", "were never required to participate in checks", or "worked in stores with remote break rooms where they stored their belongings" were beside the point as they only had to do with individuals seeking legal action, not to "class-wide" relief.
The opinion quoted Apple's "Employee Package and Bag Searches" policy, which among other things asked that employees "Do not leave the store prior to having your personal package or back [sic] searched by a member of management or the security team (where applicable)."
The original complaint
[6]PDF
had argued that Apple's policy was "demeaning" and "embarrassing" and made Apple staffers feel like they were being treated as "criminals".[7]Apple's shares are now worth more than the entire FTSE 100 combined, at a valuation of about $2.3 trillion (£1.7tn). ®
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[1] https://regmedia.co.uk/2020/09/03/frlekin_v_apple.pdf
[2] https://www.theregister.com/2020/02/13/apple_bagsearching_employees/
[3] https://www.theregister.com/2015/11/09/judge_dismisses_apple_store_shift_shakedown_lawsuit/
[4] https://www.theregister.com/2015/06/11/apple_store_staff_shakedown_lawsuit/
[5] https://www.theregister.com/2013/07/31/apple_bag_search_lawsuit/
[6] https://regmedia.co.uk/2020/09/03/frlkin_apple_complaint.pdf
[7] https://investor.apple.com/stock-price/default.aspx
[8] https://whitepapers.theregister.com/
Note this only applies to California. It's a California state law that's being used. So the scope is limited.
US federal law doesn't give you the right to be paid for time being security searched. (You might think this is ridiculous; the US Supreme court thought so too and ruled that under the US federal minimum wage laws, people have to be paid for time being security searched. In response, the US politicians changed the law, specifically to allow employers to not pay for that time without breaking federal law. However, states can pass laws that set stricter requirements).
Amazon has several huge facilities in CA to which it would apply. Of course, any worker who dares to mention it -- [1]even in a 'private' chat group -- would likely be fired on the spot.
[1] https://arstechnica.com/tech-policy/2020/09/amazon-deletes-anti-union-listing-watches-workers-secret-social-groups/
>>>US politicians changed the law, specifically to allow employers to not pay for that time<<<
Is being paid in company tokens still allowed in the US?
Mandatory is the word you're looking for.
While I do support Apple's right to require bag searches (otherwise it may be easy for a member of staff to leave with goods that are worth a lot, and with the best will in the world, people do nick stuff), if Apple are going to require bag searches, they *should* pay their staff for the extra time. If the searches are taking a long time, they need to investigate why and how to solve that, not just expect the staff to hang around for free..
Absolutely correct. And I would wish to add that, if Apple demands that employees clock out before searches, then legally those employees have every right to walk away because they are no longer under Apple control.
You can't have your cake and eat it. If you let your employees clock out, they are gone and you have no right to keep them there for anything.
Good
Happy that the employees are not going to be stuck around waiting. The stores will find a faster, more efficient way to search bags if they have to pay for the time.
Currently about a third of theft in retail stores in the US is done by employees. I wonder if Apple has figured out what their in-house losses are. It would be useful to know that, but since Apple doesn't talk to the Reg, we may never know . . .
No comment about back pay
Apple should be required to pay current and past workers for time spent being searched. How much will be interesting since I doubt that records were kept, but the judgement contains "typically ranges from five to twenty minutes ... up to forty-five minutes" (page 7) - so, perhaps, 15 minutes for every day worked.
Re: No comment about back pay
That would be a tidy sum per employee but still way less than the rounding error on Apples cash pile ($2.3Tn to the nearest 100 billion?), It'd also make them look good instead of money grabbing, and an apology woldn't go amiss either.
Re: No comment about back pay
And it seems like it could be cheaper than this whole trial and appeal cycle once you add up all the legal fees. Honestly, companies (and people) sometimes seem to go out of their way to be shitty just for the sake of being shitty.
This is all for nothing
phones stolen during looting were easily tracked by Apple. Now if you talking about the $ .50 cables that they charge 30 bucks for, all companies budget for incidental loss through theft(employee or self-employed freelance thief) damage and subsequent replacement, showroom demos etc.
Did this strip search at the end of each shift catch anyone trying to boost any goods? And if so, did they save more money than they spent on security?
Re: This is all for nothing
Yes, they probably did save more money then they spend. Mostly because they didn't have to pay the employee's for their time and because of that didn't have the need to spend money on making those searches efficient.
But that will probably change now, it'll be interesting to see if they keep these policies now that it actually costs them money. They might well go to spot checks for example.
the district court had "erred"
What happens to those that err?
Just curious.
Re: the district court had "erred"
I can tell you what happens to those that Arr, if that helps.
Soon they be sayin' Yarr! And then they's goes to sea to be pirates! And then they enjoys rum, treasure and a surprisingly good retirement and sickness benefits package. Although contact with the occasional psychopath who weaves burning matches into his beard also appears to be a serious risk of the profession.
Happens to all airport staff as well
Anyone who works airside at an airport must wait to go through airport security both when arriving at work and when leaving. Some days the wait can be over 30 minutes. Yet they clock in only after going through security, and clock out before going through security. What's more, employees must assume worst-case holdup when arriving at work because otherwise a long security queue would mean they are marked as being late.
ISTR similar decades-old case-law in the UK that concluded that time spent in a mandatory security check of workers must be paid, so maybe airport workers should look into the legitimacy of having to spend an extra unpaid hour or so a day. Though in that case the security check is a requirement of the airport (and government) rather than a requirement of the workers' employer, and takes place outside the employer's premises, so the law would not be directly applicable. So perhaps it would be the airport or government that should pay for the employees' time?
"airport or government that should pay"
Gets my vote - if that also includes the time spent in customs / immigration queues!
So sad, time was when you could smuggle a whole car out of your workplace via your lunch box.
Don't Amazon operate a similar policy?
If so, then this ruling must apply to them too.