The California Supreme Court recently decided in Frlekin v. Apple, Inc. that time spent by employees waiting for, and undergoing, required exit searches is compensable and should be considered “hours” worked under California wage orders. This includes searches of employees’ belongings that have been voluntarily brought to work purely for the employees’ personal convenience.
This ruling has implications for a variety of employers that require employees to pass through some form of an exit search (e.g., security screening, bag check) before exiting the premises. This is a common practice in retail stores and fulfillment centers, among others. When exit searches occur after employees clock out, as is typical, employers may be at legal risk of “off-the-clock work” claims, for which the damages and penalties can be substantial.
Many employers and HR departments now are looking for strategies to ensure employees are paid properly, and to avoid the considerable financial liability associated with litigation, under the Frlekin interpretation of the law. Below, I describe an approach we have used at many companies to address these concerns. The approaches outlined below have been applied both proactively and in response to litigation.
An Approach for Compliance
Ensuring wage and hour compliance in light of this ruling involves a review of policies and practices. While sound policies dictating what employees are supposed to do before exiting the workplace are important, understanding the actual practices of employees is central to ensuring compliance. A variety of data-collection methods are available to study employee practices. Typically, two critical questions need to be answered when conducting a study:
- How frequently do employees undergo an exit search after clock-out?
- How long does an exit search take?
Observational methods such as time and motion studies have been used for over a century to measure workplace behavior. In recent decades, they have been commonly used to study wage and hour issues, including allegations of off-the-clock work. And, in most cases, observational methods are well suited to answer the above questions.
Through observation, the sequence of events leading up to the exit search, time waiting for the exit search, and the exit search itself can be documented and timed. Three observational methods are often useful in this context:
- Live observation—A job analyst directly observes employees in the workplace and systematically documents the tasks they perform and the duration of those tasks. Live observers can move as necessary to observe tasks properly and gather contextual information that may not be available using other methods, like video.
- Video observation—A job analyst analyzes video recordings (e.g., surveillance footage) and systematically documents the tasks employees perform and the duration of those tasks. This method allows observers to conduct the analysis off-site and view video multiple times to maximize timing accuracy and reliability.
- Work simulations—This involves creating a simulated scenario in which employees undergo an exit search while an observer measures the duration. This approach can only help determine the duration of the activity and not the frequency with which it occurs in practice. Greater similarity between the simulation and the actual work environment provides more accurate data. This method can be repeated multiple times to capture possible variability, and the simulation can be manipulated to capture different scenarios.
By applying one (or more) of these methods, employers can generate valuable data to assess current compliance and make appropriate changes, if necessary. Data can also be useful to help answer legal questions in active litigation.
For example, data will show the frequency with which employees undergo exit searches and whether the searches occur off the clock. If HR and leadership determine this time should be compensable, observation data will enable calculations to be conducted to augment employee compensation so they are paid for this time.
Alternatively, observation data may reveal that exit searches are infrequent or occur on the clock, which would be helpful for the court in the event of litigation.
Conclusion
The recent California Supreme Court decision has implications for employers that require employees to undergo exit searches before exiting the premises. This ruling applies directly to employers that operate in California; however, issues related to employee off-the-clock work are widespread, extending beyond California and activities other than exit searches (e.g., computer boot-up time, donning and doffing).
The methods described in this article provide a strategy to evaluate compliance, set future policy, and address litigation using empirical data collected via scientific methods.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC, or its other employees and affiliates.