Massachusetts and California are probably the two most employee-friendly states from an employment law perspective.  Both states have powerful statutes protecting employees and penalizing employers.  They also both have courts that are more likely than not to interpret those laws in a pro-employee fashion.  This surely was the case in Frlekin v. Apple, Inc., where the California Supreme Court held that Apple, Inc. violated California wage-and-hour laws by not paying its employees for time spent during post-shift security searches.  (You can read the full opinion here.).

Apple prohibits employees who bring bags to work from leaving the premises before undergoing a security screening.  All personal packages and bags must be checked by a store manager or security guard any time an employee wishes to leave the store.  During the search, employees are required to open their bags and unzip internal compartments.  Employees are also required to remove ID cards from their personal Apple devices to prove ownership.  This security check takes approximately 20 minutes and is done off the clock.  Failure to follow the policy can lead to discipline and discharge. 

The California Supreme Court determined that California law required Apple to compensate its employees for the time spent during these searches. The Court based its analysis on California Wage Order 7, which defines ‘hours worked’ as time during which an employee is subject to the control of an employer.  The Court held that Apple controlled the employees during these searches because the searches were practically required, they occurred at the jobsite, they were primarily for Apple’s benefit, and Apple enforced the policy through threat of discipline.  

DOES MASSACHUSETTS LAW REQUIRE EMPLOYERS TO COMPENSATE EMPLOYEES FOR TIME SPENT DURING SECURITY CHECKS?

Massachusetts law and California law are not the same on this issue. According to Massachusetts law, employers must pay their employees for “all time during which an employee is required to be on the employer’s premises.”  Massachusetts law, unlike California law, does not focus on the ‘control’ concept.

The Court in Frlekin did, however, analyze Apple’s policy as to whether it was a requirement as Apple had argued employees could avoid the policy by, for example, not bringing Apple products onto the premises. According to the Court, this did not make the search policy not required because the term ‘required’ includes things that are strictly required and ones that are practically required. For example, the Court reasoned, a search policy in a cold climate that applied to all jackets would be ‘required,’ even if someone could technically commute without a jacket.

The Court then reasoned that, practically speaking, employees are required to undergo security screening because they are practically required to bring their cell phones to work: “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.'“ In fact, the Court noted that Apple CEO Tim Cook practically conceded as much, in a 2017 interview, referring to the iPhone as having "become so integrated and integral to our lives, you wouldn't think about leaving home without it.” In other words, giving employees the option of coming to work without their cell phones, isn’t really an option at all, which makes the security screenings practically required.

When determining whether time is compensable, Massachusetts law focuses on whether the employee is required to be on the premises. It’s likely that a Massachusetts court would look at Frlekin for guidance on this issue. It remains to be seen whether they’d follow Frlekin’s guidance as to whether ‘requirement’ includes things that are strictly or practically required, but it seems clear that the better argument is that Apple’s policy, practically speaking, requires its employees to remain on the premises, for at least 20-minutes per shift, without compensation.

Steffans Legal is currently interviewing retail employees who may have been impacted by this policy, or a similar policy.  If you believe that your employer has failed to pay you for all time spent on its premises, please contact us.