Chances are that if you ask someone what they remember from the cult-classic Paul Verhoeven film Total Recall, they’ll recall (among other things) the sequence where Arnold Schwarzenegger attempts to sneak through security. In the sequence, guards watch all of the citizens passing through on a large x-ray screen which depicts their skeletons (in glorious 1990 special effects) and immediately detects if they are carrying a weapon (which, of course, Arnold is, and results in a chase and explosions).
Unfortunately, walk-through, instantaneous, real-time x-rays are still a few years away—which means that security checkpoints, or in the case of retail stores, the low-tech “open your purse and show me that you haven’t stolen anything” still proves more efficient. As one can imagine, this process takes time, particularly at the end of a shift when multiple employees may be attempting to leave, and there is only one manager available to perform the check.
Twice this past week, California courts have addressed the question of security checks and overtime. The most recent, Santizo v. Urban Outfitters, Inc., Case No. BC-536316, was just filed on February 14, 2014, in the Superior Court for the County of Los Angeles. The plaintiffs seek a collective action, claiming that the Philadelphia-based retailer rounded down the hours worked by each of the employees, resulting in inaccurate pay stubs and being denied full payment of their appropriate wages. Specifically, for those employees that worked an eight hour shift, any time spent waiting to be dismissed by the manager after a “bag check” to ensure they had not shoplifted from the clothing chain should have resulted in overtime.
Similarly, and perhaps more noteworthy, is the matter of Friekin v. Apple, Inc., Case No. 3:13-cv-03451, pending in the Northern District of California. This lawsuit, which also alleges unpaid overtime for employees who were subjected to bag and security checks at the end of their shifts, was filed in June of 2013. The plaintiffs, who claim that the bag checks can take upwards of 90 minutes of time per week, made news this past week because they moved for certification very early in the lawsuit. The motion was so early, in fact, that District Court Judge Alsup questioned whether the plaintiffs had pled their way around serious facts by moving to certify the nationwide class less without conducting much discovery in the matter. More importantly, however, the plaintiffs have not explained how they plan to calculate damages for each individual who is subjected to bag checks, which can vary from location to location, manager to manager, and employee to employee, across the entire country.
BakerHostetler will keep our readers apprised of both cases as they progress. It should also be noted that this is not the first time in the past year that this issue has arisen. Last April, we blogged about Busk v. Integrity Staffing Solutions, Inc., Case No. 11-16882 (9th Cir. Apr. 12, 2013), where the court came down and held that time spent in exit security checks might be compensable if done for the benefit of the employer. Time will tell if the Busk decision plays any role in either the Apple or Urban Outfitter lawsuits.
The Bottom Line: Shoplifting is not a victimless crime, and plaintiffs’ attorneys are beginning to realize that its prevention can potentially harm the employees, as well. While the question or whether or not the Urban Outfitter and Apple lawsuits will result in further employers being required to pay employees for bag checks, one fact remains clear – variation among alleged illegal practices will still raise red flags with the court when determining how, if at all possible, damages can be calculated.