Recent Employment Law Decisions

California Supreme Court

Time Spent by Employees Waiting For and Undergoing Exit Searches is Compensable Hours Worked Under Wage Order 7

FRLEKEN v. APPLE, INC.

The California Supreme Court granted the Ninth Circuit’s request to decide, as a question of law, whether time spent on the employer’s premises waiting for and undergoing required exit searches of belongings voluntarily brought to work for personal convenience is compensable as hours worked. Wage Order 7 requires employers to pay their employees minimum wage for all hours worked. “Hours worked” is “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Cal. Code Regs., tit. 8, section 11070(2)(G)) The Supreme Court concluded that the time in question is compensable, and that their ruling applies retroactively.

DEFENDANT APPLE REQUIRED EMPLOYEES TO SUBMIT TO SEARCHES BEFORE LEAVING A STORE

Defendant Apple instituted a bag search policy requiring employees to submit personal belongings for inspection before leaving the store. Almost all Apple employees brought a bag or purse to work. Employees estimated that the wait time for a search was 5-20 minutes and up to 45 minutes on the busiest days. All time spent waiting for a bag search and undergoing a bag search was unpaid. Apple employees brought a class action for labor code violations, and the district court granted Apple’s motion for summary judgment, finding that exit searches were not compensable hours worked. Plaintiffs appealed.

EMPLOYEES WERE UNDER APPLE’S CONTROL WHILE WAITING FOR AND UNDERGOING SEARCHES, RENDERING THAT TIME “HOURS WORKED”

The wage orders and California’s other wage and hour laws should be liberally construed to promote employee protection. In

previous cases, the Supreme Court held that employees need not be working to fall under “hours worked,” as long as they are subject to the control of the employer. Likewise, the employee need not be under the employer’s control if the employer has or should have knowledge that the employee is working. Under the “control” analysis, Apple employees were entitled to compensation because they were clearly under Apple’s control while waiting for and undergoing exit searches. Control existed because Apple required employees to comply with the bag search policy under threat of discipline, confined employees to the premises while they waited, and required employees to perform certain tasks during that time like locating a manager or security guard, opening all bags and packages, moving items around in the bags, and removing personal Apple technology for inspection. Apple argued that the wait was avoidable if employees brought no bags, but the Court rejected that argument, finding no unavoidability requirement. In addition, the uncompensated time primarily benefited Apple and its interest in deterring theft, rather than benefiting the employees. The Court declined to consider whether Apple’s searches were compensable under the suffered or permitted to work clause, in addition to the control clause.

CELA INVOLVEMENT

Congratulations to CELA member Kimberly Kralowec! Thank you to CELA members Aaron Kaufmann and Michael Singer for their Amicus work for CELA, Eric Kingsley for his Amicus work for Bet Tzedek Legal Services, and David Mara for his Amicus work for CAOC.

CA Supreme Court. Filed 2/13/20. 8 Cal.5th 1038. Opinion by Chief Justice Cantil-Sakauye.

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Message from the Chair
By Elizabeth Riles, CELA Chair

Dear CELAmates,

Elizabeth Riles

This is a difficult time for all of us.  I know that personally my anxiety level has risen, trying to work remotely, worrying about paying my employees, whether litigation will keep moving during court closures and opposing counsel working from home and doing all that while running a school out of my house for a 10-year old and a 7-year old.  On top of that, I have been charged with guiding this organization and suddenly we are hit with this unprecedented crisis.  We have a way to go before returning to a semblance of normality.  I’m reaching out to you to say emphatically: We are all in this together.  CELA was started to help us band together to give us the resources of the large law firms that we often face.

Our membership of over 1,200 lawyers is one of the largest law firms in the state.  Together, when we pool our resources, knowledge and energy, we can pull everyone through this successfully.  I am so heartened already by all of the messages of hope, and of people reaching out to offer support with how to work remotely and how to help our own employees weather this storm.

Below is updated information on the status of each of the Courts in dealing with this crisis.  It is our intention to continue to provide these updates to you.  We are also asking you to let us know what we can do for you.  What kind of support can we provide for you during this crisis?  In that vein, CELA and its Practice Management Committee are planning to hold regular or semi-regular Suite Talks about issues that are affecting us all now.  Please help us figure out what else you might need that will mitigate the impact COVID-19 has on our practices and our clients.  I am inviting you to share your thoughts and ideas with

us.

As always, CELA is here for you. We will get through this together.  Please do reach out to us for help, support, to share ideas, or just to commiserate about this difficult situation.

Take care and stay healthy everyone!

Elizabeth

COURT CLOSURES – PLEASE CHECK THE LISTSERV FOR PERIODIC UPDATES

Alameda County Superior Court has closed all of its courthouses in compliance with local shelter-in-place orders to prevent the spread of COVID-19. Read more

Butte County Superior Court -some matters are being continued by the Court to reduce the number of individuals entering the Courthouse at this time. It is strongly recommended that you look up your case online prior to appearing to confirm that your hearing is still set.” Read More

Contra Costa County Superior Court will be closed at all locations for approximately two weeks beginning Monday, March 16, 2020. Court locations hope to re-open at 8:00 a.m. on Wednesday, April 1st, 2020. Please check the Court website – http://www.cc-courts.org – for updates.

El Dorado County Superior Court: No postponements at this time.  “Effective March 16 all Clerk’s Counters will be closed to the public in all Court facilities.” Read more

Del Norte County Superior Court: The Court will do its best to continue cases to a time when symptoms that can spread infection such as severe coughing, sneezing, and feverish appearances have subsided. Read more

Fresno County Superior Court will be closed from March 19, 2020 to April 3, 2020 with some limited exceptions.” More

Humboldt County Superior Court : “The Humboldt Superior Court will be closed from March 17 through March 20. Beginning March 23 and continuing for at least 30 days thereafter, the Court will conduct limited hearings and limited Court operations.” More

Marin County Superior Court  will be closed for all non-essential matters from March 17, 2020 through April 7, 2020. Learn more here.

Los Angeles County Superior Court  All non-emergency matters are continued for 30 days and all civil and criminal trial suspended till 4.16.20  Read More

Madera County Superior Court : “All civil trials, with the exception of unlawful detainer trials, currently scheduled between March 17 and April 3 are continued on a rolling basis for eight weeks from the currently scheduled trial date.” More

Merced County Superior Court : “All civil jury trials currently set between March 17 and April 28 will be continued on a rolling basis for eight weeks from the currently scheduled trial date. Trials currently underway will continue as scheduled.” More

Mono County Superior Court : “All jury trials are suspended until further notice.”

Napa County Superior Court is closed to the public for anything other than time sensitive or emergency matters from Wednesday, March 18, through Friday April 10, 2020.  Click here to monitor their website

Nevada County Superior Court : “All Civil and Criminal jury trials scheduled to commence between March 17 and April 14 are VACATED.” More

Orange County Superior Court : “Orange County Superior Court will be closed at all locations from March 17 through March 27.” More “The Court will suspend all unlimited civil jury trials until May 1.” More

Placer County Superior Court : “The Historic Courthouse in Auburn is closed effective March 17 with a plan to reopen April 13. All civil jury trials currently set between March 16 and April 10 are postponed.” More

Riverside County Superior Court : “Civil jury trials are hereby suspended until May 25. Ongoing jury trials will be evaluated on a case by case basis. Limited civil trials are hereby suspended for 60 days.” From an administrative order by presiding judge John W. Vineyard that was forwarded to us by an attorney.

Sacramento County Superior Court : The Court is closed except for certain essential matters from March 18, 2020 to April 16, 2020.” More

San Benito County Superior Court : “Effective immediately through May 4, the San Benito Superior Court will reschedule…Civil Court and Jury Trials, Case Management conferences, Mandatory Settlement Conferences and Unlimited Civil Motions.”

San Bernardino County Superior Court : “The San Bernardino County Superior Court announces temporary court closures throughout the County effective March 17 through April 2.” More “Civil jury trials will be suspended for the next 30 days [as of March 13], unless there are cases with statutory priority.” More

San Diego County Superior Court : “The San Diego Superior Court has suspended all non-emergency services March 17-April 3. All civil proceedings will be rescheduled.” More

Santa Clara County Superior Court – effective March 16 through April 5, 2020, the following matters will be rescheduled in the Santa Clara County Superior Court: Civil and Probate Jury and Court Trials except for ongoing trials; Small Claims Motions, Trials and Appeals; Most Traffic Matters; Many Family Hearings; Most Guardianship and Adoption Proceedings; Many Criminal Trials. Read more  All clerk’s office functions will be closed to the public while this order remains in place.

San Joaquin County Superior Court : “The San Joaquin Superior Court has suspended all non-emergency services effective March 17-April 3. The Lodi Courthouses will be closed. All civil proceedings will be rescheduled.” More

San Luis Obispo County Superior Court : Effective Thursday, March 19, 2020, public access to the courthouses in Paso Robles and Grover Beach will be closed. Public access to the San Luis Obispo courthouse will be limited to those appearing for matters on the calendar that day. All Court staff will report to work and will assist the public remotely. More

San Mateo County Superior Court : “Presiding Judge Jonathan E. Karesh ordered that all trials be suspended for up to 30 days and ordered all Civil and Small Claims matters be continued or rescheduled. With very few exceptions, the Court will be closed to the public beginning March 17 through April 7.” More

Santa Barbara County Superior Court : “The Santa Barbara County Superior Court will close most courtrooms. All Civil, Family and Probate matters currently set on the Court’s calendar from March 17 through April 3 will be rescheduled.” More

Santa Cruz County Superior Court : “The Superior Court of Santa Cruz County is moving toward curtailing its services to those that are essential or mandated by law to occur within a set timeframe. The Court has already excused jurors ordered to report this week and is working on a plan to delay all other jury trials for the next several weeks.” More

Sierra County Superior Court : “The Courthouse in Sierra County will be closed until further notice.

Solano County Superior Court : “The Court remains open, but will seek to reset and continue many civil trials. All Clerk’s Offices are closed to the public.

Sonoma County Superior Court : “The presiding judge has decided to close all court locations and services except for critical calendars and functions effective March 16 through April 3.” More

San Francisco County Superior Court released its plan to prevent the spread of COVID-19. Read it here

Supreme Court of California Amends Oral Argument Procedures in Response to COVID-19. Read more

Tulare County Superior Court : “All civil trials currently set between March 17 and April 17 will be continued.” More

US Supreme Court Postpones Upcoming Arguments Amid Coronavirus Threat

Ventura County Superior Court: “The Ventura Superior Court will have limited operations.” More

Yolo County Superior Court: The Court will remain open with reduced calendars for essential functions, other court functions will be closed.  All civil and nonpriority criminal jury trials are continued until May 4, 2020.  Read More

Yuba County Superior Court :  All Court Operations are proceeding as planned.” More

OTHER RELEVANT CLOSURES – PLEASE CHECK THE LISTSERV FOR PERIODIC UPDATES

The Alameda County Law Library 

will be closed to the public in effect through Monday, April 6th, but may be extended. Read more

Department of Labor, Office of Administrative Law Judges (OALJ) is, effective Monday, March 16, 2020 through Friday, April 10, 2020, suspending all in-person hearings, settlement judge conferences and mediations. Read more

EEOC – The EEOC is doing Agency-Wide Telework.  If you would like to begin the process of filing a charge of discrimination you are encouraged to visit the EEOC Public Portal (https://publicportal.eeoc.gov) to schedule an intake appointment by telephone. The system can also be accessed by going directly to our website at www.eeoc.gov. More information about reaching an EEOC field office is available at https://www.eeoc.gov/field/index.cfm.

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