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Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038
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IN THE SUPREME COURT OF
CALIFORNIA
AMANDA FRLEKIN et al.,
Plaintiffs and Appellants,
v.
APPLE INC.,
Defendant and Respondent.
S243805
Ninth Circuit
15-17382
Northern District of California
3:13-cv-03451-WHA, 3:13-cv-03775-WHA and
3:13-cv-04727-WHA
February 13, 2020
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,
Groban, and Edmon * concurred.
* Presiding Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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FRLEKIN v. APPLE INC.
S243805
Opinion of the Court by Cantil-Sakauye, C. J.
Industrial Welfare Commission wage order No. 7-2001
(Wage Order 7) requires employers to pay their employees a
minimum wage for all “hours worked.” (Cal. Code Regs., tit. 8,
§ 11070, subd. 4(B).) “Hours worked” is defined as “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.” (Id.,
§ 11070, subd. 2(G).)
We granted the request of the United States Court of
Appeals for the Ninth Circuit to decide the following question of
California law, as reformulated by this court (see Cal. Rules of
Court, rule 8.548(f)(5)): Is time spent on the employer’s
premises waiting for, and undergoing, required exit searches of
packages, bags, or personal technology devices voluntarily
brought to work purely for personal convenience by employees
compensable as “hours worked” within the meaning of Wage
Order 7? For the reasons that follow, we conclude the answer to
the certified question is, yes.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Apple Inc. (Apple) is a leading personal
technology provider. It operates retail stores worldwide,
including 52 in California, that display and sell Apple products.
Apple requires its retail store employees to undergo exit
searches pursuant to its “Employee Package and Bag Searches”
1
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
policy (hereafter the bag-search policy), which imposes
mandatory searches of employees’ bags, packages, purses,
backpacks, briefcases, and personal Apple technology devices,
such as iPhones. The bag-search policy states:
Employee Package and Bag Searches
All personal packages and bags must be checked by
a manager or security before leaving the store.
General Overview
All employees, including managers and Market
Support employees, are subject to personal package
and bag searches. Personal technology must be
verified against your Personal Technology Card (see
section in this document) during all bag searches.
Failure to comply with this policy may lead to
disciplinary action, up to and including termination.
Do
• Find a manager or member of the security team
(where applicable) to search your bags and
packages before leaving the store.
Do Not
• Do not leave the store prior to having your
personal package or ba[g] searched by a member
of management or the security team (where
applicable).
• Do not have personal packages shipped to the
store. In the event that a personal package is in
the store, for any reason, a member of
management or security (where applicable) must
search that package prior to it leaving the store
premises.
Apple also provides guidelines to Apple store managers
and security team members conducting the searches pursuant
to the bag-search policy. The guidelines reiterate that “[a]ll
2
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
Apple employees, including Campus employees, are subject to
personal package checks upon exiting the store for any reason
(break, lunch, end of shift).” The guidelines instruct Apple
managers to “[a]sk the employee to open every bag, brief case,
back pack, purse, etc.,” “[a]sk the employee to remove any type
of item that Apple may sell,” and “[b]e sure to verify the serial
number of the employee’s personal technology against the
personal technology log.” The guidelines also direct Apple
managers to “ask the employee to unzip zippers and
compartments so [managers] can inspect the entire contents of
the bag” and “ask the employee to move or remove items from
the bag so that the bag check can be completed.” “In the event
that a questionable item is found,” the manager must “ask the
employee to remove the item from the bag.” The guidelines
provide that “Apple will reserve the right to hold onto the
questioned item until it can be verified as employee owned.”
The record indicates that Apple employees bring a bag to
work for a variety of reasons. For example, some employees
bring bags to carry Apple-provided apparel, which employees
must wear while working but are required to remove or cover up
while outside the store. Others bring bags containing their cell
phones, food, keys, wallets, or eyeglasses. Managers estimated
that 30 percent of Apple employees bring such bags to work;
employees estimated that “nearly all” do.
Apple employees are required to clock out before
submitting to an exit search pursuant to the bag-search policy.
Employee estimates of the time spent awaiting and undergoing
an exit search range from five to 20 minutes, depending on
manager or security guard availability. On the busiest days,
Apple employees have reported waiting up to 45 minutes to
3
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
undergo an exit search. As a rule, they are not compensated for
this time.
Plaintiffs Amanda Frlekin, 1 Taylor Kalin, Aaron
Gregoroff, Seth Dowling, and Debra Speicher, suing on their
own behalf and on behalf of a class of similarly situated Apple
retail store employees, filed a complaint against Apple in federal
district court. The operative complaint alleges, among other
things, that Apple failed to pay plaintiffs minimum and
overtime wages for time spent waiting for and undergoing
Apple’s exit searches in violation of California law. 2
The district court certified a class of all Apple California
nonexempt employees who were subject to the bag-search policy
from July 25, 2009 to the present. In order to limit the issues
regarding plaintiffs’ individualized reasons for bringing
packages, bags, or Apple personal technology devices to work,
the district court specified in its certification order that the bag
searches would be adjudicated as compensable or not based on
the most common scenario — that is, an employee who
voluntarily brought an item subject to search under the bag -
search policy to work purely for personal convenience. In other
1 Amanda Frlekin withdrew as a class representative but
remains a party.
2 The complaint also included collective action claims under
the federal Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et
seq.; FLSA) as well as class action claims under various states’
labor laws, but the non-California law claims were stayed and
ultimately dismissed following the United States Supreme
Court’s decision in Integrity Staffing Solutions, Inc. v. Busk
(2014) 574 U.S. 27 (Integrity Staffing), which held that time
spent undergoing mandatory security screenings was not
compensable under the FLSA, as amended by the Portal-to -
Portal Act of 1947 (29 U.S.C. § 251 et seq.; Portal-to-Portal Act).
4
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
words, the certified class did not include potential plaintiffs who
were required to bring a bag or iPhone to work due to special
needs (such as medication or disability accommodations).
Cross-motions for summary judgment followed. The
district court granted Apple’s motion and denied plaintiffs’
motion. It ruled that time spent by class members waiting for
and undergoing exit searches is not compensable as “hours
worked” under California law. As relevant here, the court
determined that the “hours worked” control clause in Wage
Order 7 requires proving both that the employer restrains the
employee’s action during the activity in question and the
employee has no plausible way to avoid the activity.
Plaintiffs appealed to the Ninth Circuit, which asked us to
address the state law issue. (Frlekin v. Apple, Inc. (9th Cir.
2017) 870 F.3d 867, 869 (Frlekin).)
II. DISCUSSION
The Industrial Welfare Commission (IWC) was
established more than a century ago “to fix minimum wages,
maximum hours of work, and standard conditions of labor.”
(Martinez v. Combs (2010) 49 Cal.4th 35, 50 (Martinez); Stats.
1913, ch. 324, § 13, p. 637.) “Pursuant to its ‘broad statutory
authority’ [citation], the IWC in 1916 began issuing industry -
and occupation-wide wage orders specifying minimum
requirements with respect to wages, hours, and working
conditions [citation].” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1026.)
We construe wage orders, like wage and hour laws, so as
to promote employee protection. (Mendiola v. CPS Security
Solutions, Inc. (2015) 60 Cal.4th 833, 840 (Mendiola).) Our prior
decisions have made clear that “wage orders are the type of
5
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
remedial legislation that must be liberally construed in a
manner that serves its remedial purposes” of protecting and
benefitting employees. (Dynamex Operations West, Inc. v.
Superior Court (2018) 4 Cal.5th 903, 953 (Dynamex); see also
Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257,
262 (Augustus) [when construing wage orders, courts adopt the
construction that best gives effect to the Legislature and the
IWC’s purpose of protecting employees]; Industrial Welfare
Com. v. Superior Court (1980) 27 Cal.3d 690, 702 [same].)
Wage Order 73 is one such wage order. (See Cal. Code
Regs., tit. 8, § 11070.) Wage Order 7 requires employers to pay
their employees a minimum wage for all “hours worked” (id.,
§ 11070, subd. 4(B)), defined as “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” (id., § 11070, subd. 2(G)).
We have explained that the two phrases of the “hours
worked” definition establish “independent factors, each of which
defines whether certain time spent is compensable as ‘hours
worked.’ ” (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575,
582 (Morillion).) Thus, an employee who is subject to the control
of an employer does not have to be working during that time to
be compensated under the applicable wage order. (Ibid.)
Likewise, an employee who is suffered or permitted to work does
not have to be under the employer’s control to be compensated,
provided the employer has or should have knowledge of the
employee’s work. (Id. at pp. 584-585; Troester v. Starbucks Corp.
3 Wage Order 7 covers all persons employed in the
mercantile industry. (Cal. Code Regs., tit. 8, § 11070, subd. 1.)
6
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
(2018) 5 Cal.5th 829, 853; Hernandez v. Pacific Bell Telephone
Co. (2018) 29 Cal.App.5th 131, 137 (Hernandez).)
With these principles in mind, we first consider whether
the time spent waiting for and undergoing Apple’s exit searches
is compensable as “hours worked” under the control standard.
A. The Language and History of the Control Clause
Suggest that the Exit Searches are Compensable
“We independently review the construction of statutes
[citation], and begin with the text. If it ‘is clear and
unambiguous our inquiry ends.’ [Citation.] Wage and hour laws
‘are to be construed so as to promote employee protection.’
[Citations.] These principles apply equally to the construction
of wage orders. [Citation.] Additionally, when the relevant facts
are not in dispute, what qualifies as hours worked is a question
of law, reviewed de novo.” (Mendiola, supra, 60 Cal.4th at
p. 840.)
Based on the language of the control clause, Apple
employees are entitled to compensation for the time during
which they are subject to Apple’s control. (Cal. Code Regs., tit.
8, § 11070, subd. 2(G).) Applying a strictly textual analysis,
Apple employees are clearly under Apple’s control while
awaiting, and during, the exit searches. Apple controls its
employees during this time in several ways. First, Apple
requires its employees to comply with the bag-search policy
under threat of discipline, up to and including termination.
Second, Apple confines its employees to the premises as they
wait for and undergo an exit search. Third, Apple compels its
employees to perform specific and supervised tasks while
awaiting and during the search. This includes locating a
manager or security guard and waiting for that person to
7
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
become available, unzipping and opening all bags and packages,
moving around items within a bag or package, removing any
personal Apple technology devices for inspection, and providing
a personal technology card for device verification.
Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th
968, 972 (Bono) (disapproved on other grounds in Tidewater
Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557),
supports our interpretation of the control clause. In Bono,
temporary workers at a manufacturing plant were not given
security clearance and were required to “remain on the plant
premises during their 30-minute lunch period unless they
ma[d]e prior arrangements to reenter the plant after leaving for
lunch.” (Ibid.) The Court of Appeal, relying on the dictionary
definition of “control,” held that the employees who were
required to remain onsite during their lunch hour were entitled
to compensation for that time. (Id. at p. 975.)
The Bono court focused on the phrase “ ‘subject to the
control of an employer[,]’ ” concluding that “[t]his language is
neither vague nor unclear.” (Bono, supra, 32 Cal.App.4th at
pp. 947-975.) Based on two dictionary definitions of the word
“control,” the court interpreted the clause to mean “[w]hen an
employer directs, commands or restrains an employee.” (Id. at
p. 975.) It explained: “These definitions are not obscure; they
are meanings commonly attributed to the words chosen by the
IWC to communicate the obvious — an employer must
compensate an employee for the time during which the employer
controls the employee.” (Ibid.) Thus, “[w]hen an employer
directs, commands or restrains an employee from leaving the
work place . . . and thus prevents the employee from using the
time effectively for his or her own purposes, that employee
8
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
remains subject to the employer’s control. According to [the
applicable wage order], that employee must be paid.” (Ibid.)
Apple asserts that an employee’s activity must be
“required” and “unavoidable” in order to be compensable. But
those words do not appear in the control clause. Redefining the
control clause to cover only unavoidably required employer -
controlled activities would limit the scope of compensable
activities, resulting in a narrow interpretation at odds with the
wage order’s fundamental purpose of protecting and benefitting
employees. (Augustus, supra, 2 Cal.5th at pp. 262, 269; see also
Dynamex, supra, 4 Cal.5th at p. 953 [courts must construe
“hours worked” definition liberally to achieve wage order’s terms
and serve its remedial purposes].) It would also “amount[] to
improper judicial legislation” (Morillion, supra, 22 Cal.4th at
p. 585), and we decline Apple’s invitation to engage in such
action.
Nor is Apple’s interpretation consistent with the history of
the “hours worked” definition in Wage Order 7. In 1943, the
IWC issued a “New Series” of Wage Orders (the “NS” series),
which included a two-part definition of “[h]ours employed”
modeled from the 1939 federal Interpretive Bulletin. (IWC wage
order No. 7NS (June 21, 1943) (Wage Order 7NS).) Under Wage
Order 7NS, “ ‘[h]ours employed’ includes all time during which:
[¶] 1. A [person] is required to be on the employer’s premises
ready to work, or to be on duty, or to be at a prescribed work
place. [¶] 2. A [person] is suffered or permitted to work,
whether or not required to do so. Such time includes, but shall
not be limited to, time when the employee is required to wait on
the premises while no work is provided by the employer and
time when an employee is required or instructed to travel on the
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
employer’s business after the beginning and before the end of
her work day.” (Id., § 2(f), italics added.)
In 1947, Congress enacted the Portal-to-Portal Act, which
significantly narrowed the federal definition of “hours worked.”
(Martinez, supra, 49 Cal.4th at p. 59.) “In response, the IWC,
exercising its authority to provide employees with greater
protection than federal law affords [citations], revised its wage
orders from 1947 forward to define the term ‘hours worked’ as
meaning ‘the time during which an employee is subject to the
control of an employer, . . . includ[ing] all the time the employee
is suffered or permitted to work, whether or not required to do
so.’ ” (Id. at p. 60; see IWC wage order No. 7R (June 1, 1947).)
Since 1947, the IWC has issued ten more amended wage orders
for the mercantile industry, but it has never changed the
definition of “hours worked.”
The history of the “hours worked” definition in Wage
Order 7 indicates that the IWC purposely abandoned the
narrower standard of compensating only “required” activities
more than 70 years ago. The changes made in 1947 suggest that
the IWC intended to make compensable the time “during which”
employees are “control[led],” even if such time is not required.
(Cal. Code Regs., tit. 8, § 11070, subd. 2(G).) This interpretation
is bolstered by the IWC’s decision to strike “require” from the
control clause but to retain the word “required” in the “suffered
or permitted to work” clause. (Ibid. [“hours worked” “includes
all the time the employee is suffered or permitted to work,
whether or not required to do so” (italics added)]; Rashidi v.
Moser (2014) 60 Cal.4th 718, 725 [when the Legislature uses a
word or phrase in one part of a statute differently from what it
uses in other sections, two different meanings “must be
presumed”]; Singh v. Superior Court (2006) 140 Cal.App.4th
10
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
387, 399 [applying this rule to IWC wage orders].) Interpreting
the “hours worked” control clause as Apple suggests to cover
only unavoidably required activities would not comport with the
wage order’s plain language or its history.
B. Morillion and its Progeny do not Preclude
Relief
Despite the plain language and history of the “hours
worked” control clause, Apple maintains that its exit searches
are not compensable under Morillion and its progeny because
Apple employees may avoid such searches by choosing not to
bring a bag, package, or personal Apple technology device to
work. But it is not clear that Morillion supports such a
conclusion.
In Morillion, we considered whether the time employees
spent traveling to and from a worksite on employer-provided
buses was compensable under the “hours worked” control clause.
(Morillion, supra, 22 Cal.4th at p. 578.) There, the employer
required its employees to meet each day at specified assembly
areas and ride the employer-provided bus to and from
agricultural fields where the employees worked. (Id. at p. 579.)
As a rule, employees were prohibited from using their own
transportation to and from the fields. (Ibid.) Employees who
drove their personal vehicles to work were subject to disciplinary
action, including the loss of a day’s wages. (Id. at p. 579, fn. 1.)
We held that the employees in Morillion were entitled to
compensation for their compelled travel time under the
applicable wage order because they were “ ‘subject to the control
of an employer’ ” during that time. (Morillion, supra, 22 Cal.4th
at p. 578, citing Cal. Code Regs., tit. 8, § 11140, subd. 2(G).) By
determining when, where, and how its employees must travel,
11
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
we reasoned, the employer in Morillion exercised a significant
level of control over its employees. (Morillion, at p. 586.) As a
result of this control, the employees “were foreclosed from
numerous activities in which they might otherwise engage if
they were permitted to travel to the fields by their own
transportation.” (Ibid.) We rejected the employer’s argument
that the employees were not under its control for the duration of
the bus ride because they could engage in personal activities
during that time, explaining that “[a]llowing [the employees] the
circumscribed activities of reading or sleeping does not affect,
much less eliminate, the control [the employer] exercises by
requiring them to travel on its buses and by prohibiting them
from effectively using their travel time for their own purposes.”
(Ibid.) We concluded that “[t]he level of the employer’s control
over its employees, rather than the mere fact that the employer
requires the employees’ activity, is determinative.” (Id. at
p. 587.)
In reaching this conclusion, we relied on Bono’s
interpretation of the “hours worked” control clause. (Morillion,
supra, 22 Cal.4th at p. 582, citing Bono, supra, 32 Cal.App.4th
at p. 975.) Citing Bono, we held that the employees’ compulsory
travel time, which included the time they spent waiting for their
employer’s buses to begin transporting them, was compensable.
(Morillion, at p. 587.) We explained: “[The employer] required
[its employees] to meet at the departure points at a certain time
to ride its buses to work, and it prohibited them from using their
own cars, subjecting them to verbal warnings and lost wages if
they did so. By ‘ “direct[ing]” ’ and ‘ “command[ing]” ’ [its
employees] to travel between the designated departure points
and the fields on its buses, [the employer] ‘ “control[led]” ’ them
12
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
within the meaning of ‘hours worked’ . . . .” (Ibid., citing Bono,
at pp. 974-975.)
We emphasized in Morillion that our holding was limited
to compulsory travel time. (Morillion, supra, 22 Cal.4th at
pp. 587-588.) We clarified that the time employees spend
commuting from home to the departure points and back again is
not compensable. (Ibid.) We also noted that “[t]ime employees
spend traveling on transportation that an employer provides but
does not require its employees to use may not be compensable
as ‘hours worked.’ ” (Id. at p. 588.) Courts have applied
Morillion in other cases involving employer-provided
transportation, concluding that compulsory use of such
transportation is compensable and optional use is not. (E.g.,
Hernandez, supra, 29 Cal.App.5th at p. 141 [time spent in
company-provided vehicle between technician employee’s home
and customer’s residence was not compensable as hours worked
under control test because employee was not required to use
company vehicle]; Overton v. Walt Disney Co. (2006) 136
Cal.App.4th 263, 271 (Overton) [time spent waiting for and
riding employer-provided shuttle bus was not compensable as
hours worked under control clause because shuttle was optional
and alternative means of transportation existed].)
However, we are not aware of any California case 4
discussing the precise issue of whether time spent at the
4 We note that the federal high court’s decision in Integrity
Staffing, supra, 574 U.S. 27, does not guide our analysis.
Integrity Staffing was based on the Portal-to-Portal Act’s
explicit classification of activities occurring both prior to and
after the regular workday as non-compensable. (Integrity
Staffing, at pp. 32-36.) However, we have already determined
13
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
worksite waiting for and undergoing exit searches is
compensable as “hours worked.” Apple maintains that this time
is not compensable because, unlike the employees in Morillion,
plaintiffs may theoretically avoid a search by choosing not to
bring a bag or iPhone to work. We disagree.
As a preliminary matter, there are inherent differences
between cases involving time spent traveling to and from work,
and time spent at work. Commuting is an activity that
employees ordinarily initiate on their own, prior to and after
their regular workday, and is not generally compensable.
(Morillion, supra, 22 Cal.4th at p. 587; Lab. Code, § 510, subd.
(b) [time spent commuting to and from work is not considered to
be part of a day’s work].) Moreover, in the commute context, an
employer’s interest generally is limited to the employee’s timely
arrival. Generally speaking, it would not seem to matter to the
employer how or when an employee travels, so long as the
employee arrives on time. Thus, unless the employer compels
the employee to use a certain kind of transportation or
employer-provided transportation, it would be, without more,
unreasonable to require the employer to pay for travel time.
In the present case, by contrast, Apple controls its
employees at the workplace, where the employer’s interest —
here, deterring theft — is inherently greater. Moreover, the
that the Portal-to-Portal Act “differs substantially from the
state scheme, [and] should be given no deference.” (Morillion,
supra, 22 Cal.4th at p. 588.) We have also recognized that “our
departure from the federal authority is entirely consistent with
the recognized principle that state law may provide employees
greater protection than the FLSA.” (Id. at p. 592.) Accordingly,
we find Integrity Staffing to be neither dispositive nor
persuasive. Apple does not argue otherwise.
14
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Opinion of the Court by Cantil-Sakauye, C. J.
level of Apple’s control over its employees — the “determinative”
factor in analyzing whether time is compensable under the
control standard (Morillion, supra, 22 Cal.4th at p. 587) — is
higher during an onsite search of an employee’s bags, packages,
and personal Apple devices. Apple employees who bring an item
subject to search under the bag-search policy are: confined to
the premises until they submit to the search procedure; required
to locate a manager or security guard and wait for that
individual to become available; and compelled to take specific
actions and movements during the search, including opening
their bags, unzipping internal compartments, removing their
personal Apple technology devices and technology cards, and
proving ownership of such items. Because Apple’s business
interests and level of control are greater in the context of an
onsite search, the mandatory/voluntary distinction applied in
Morillion is not dispositive in this context.
The nature of the controlled activity here is distinct from
Morillion and its progeny in another respect: those cases
involve optional services that primarily benefit the employee. In
Morillion, we characterized optional employer-provided
transportation as an employee benefit that should be
encouraged as a policy matter. (Morillion, supra, 22 Cal.4th at
p. 594.) We expressed optimism that our decision would not
dissuade employers “from providing free transportation as a
service to their employees.” (Ibid., italics added.) Reflecting this
distinction, the Ninth Circuit recently described Morillion as
holding that compensation was not required “[i]f employers
offered a benefit or service that employees could choose, but were
not required to take advantage of.” (Rodriguez v. Taco Bell Corp.
(9th Cir. 2018) 896 F.3d 952, 957, italics added; see also
Watterson v. Garfield Beach CVS LLC (C.D.Cal. 2015) 120
15
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Opinion of the Court by Cantil-Sakauye, C. J.
F.Supp.3d 1003, 1007 [holding that under California law
“restrictions imposed on the use of optional benefits provided by
an employer to employees do not subject those employees to the
control of the employer such that the Wage Order’s
requirements are applicable” (italics added)].) Similarly, in
Overton, Walt Disney Company offered free shuttle busses as an
optional benefit to employees assigned to the parking lot
farthest from the employee Disneyland entrances. (Overton,
supra, 136 Cal.App.4th at p. 266.) The Court of Appeal
concluded that the employees’ use of this optional benefit was
not compensable as “ ‘ “hours worked.” ’ ” (Id. at p. 271.)
In other cases involving the “hours worked” control clause,
we have found whether an employee’s activity primarily benefits
the employer to be a relevant consideration. (E.g., Mendiola,
supra, 60 Cal.4th at pp. 841-842 [in deciding whether on-call
waiting time constitutes “hours worked” under the control
clause, courts have considered whether such time is spent
primarily for the benefit of the employer and its business].) In
Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d
403, 409, we adopted a two-step analysis in determining
whether limitations placed on police department employees’
mealtime periods converted that time into hours worked. We
examined first, “whether the restrictions on off-duty time are
primarily directed toward the fulfillment of the employer’s
requirements and policies,” and second, “whether the employees’
off-duty time is so substantially restricted that they are unable
to engage in private pursuits.” (Ibid.) We concluded that the
meal break restrictions, which required employees to return to
duty if necessary, banned the conducting of personal business
while in uniform, and prevented employees from scheduling
16
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Opinion of the Court by Cantil-Sakauye, C. J.
personal appointments, were imposed primarily for the benefit
of the employer. (Id. at p. 410.)
Here, like Madera and Mendiola, and unlike Morillion and
Overton, the employer-controlled activity primarily serves the
employer’s interests. The exit searches are imposed mainly for
Apple’s benefit by serving to detect and deter theft. In fact, they
are an integral part of Apple’s internal theft policy and action
plan. The exit searches burden Apple’s employees by preventing
them from leaving the premises with their personal belongings
until they undergo an exit search — a process that can take five
to 20 minutes to complete — and by compelling them to take
specific movements and actions during the search.
Apple acknowledges that the exit searches promote its
interest in loss prevention, but nevertheless urges this court to
view the searches as part of a broader policy that benefits its
employees. Apple argues, in this regard, that it could have
totally prohibited its employees from bringing any bags or
personal Apple devices into its stores altogether, and thus
employees who bring such items to work may reasonably be
characterized as having chosen to exercise an optional
benefit. However, Apple has not imposed such draconian
restrictions on its employees’ ability to bring commonplace
personal belongings to work. Under the circumstances of this
case and the realities of ordinary, 21st century life, we find far -
fetched and untenable Apple’s claim that its bag-search policy
can be justified as providing a benefit to its employees. 5
5 However, it is uncontroverted that Apple may impose
reasonable restrictions on the size, shape, or number of bags
that its employees may bring to work, and that it may require
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
Moreover, as in Morillion and unlike Overton or
Hernandez, Apple’s exit searches are enforceable by disciplinary
action. In Morillion, the employer’s work rules specified that its
employees would be subject to verbal warnings and lost wages if
they drove a personal vehicle to work. (Morillion, supra,
22 Cal.4th at pp. 579, fn. 1, and 587.) In the present case,
Apple’s written policy explicitly provides that failure to comply
with its bag-search policy may lead to disciplinary action, up to
and including termination. Employees who do not comply with
the policy may also be compelled to attend a “Warning Meeting,”
cited for “Behavior to be Corrected,” and assigned to a “Coaching
Tracker.” This factor also strongly suggests that plaintiffs are
under Apple’s control while waiting for, and undergoing, the exit
searches.
Furthermore, case law suggests that the employee’s
ability to avoid an employer-controlled activity is not dispositive
outside of the commuting context. As discussed above, the Bono
court concluded that temporary workers who were required to
remain on the premises during their lunch break were entitled
to compensation because they were subject to the employer’s
control. (Bono, supra, 32 Cal.App.4th at p. 975.) This was so
even though the requirement was avoidable. There, the
employer allowed workers to leave the worksite if they “ma[d]e
prior arrangements to reenter the plant after leaving for lunch.”
(Id. at p. 972.) Notwithstanding this exception, the Court of
Appeal concluded that the employees who had not made
employees to store their personal belongings in offsite locations,
such as lockers or break rooms. We also take no issue with
Apple’s policy prohibiting employees from shipping personal
packages to its stores.
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advance arrangements to leave and reenter the plant were
subject to the control of their employer. (Id. at p. 975.) The court
clarified that “those employees [who had made prior
arrangements to leave for lunch and reentered the plant] were
not restricted to the work site for meal periods and, therefore,
did not remain subject to the employer’s control.” (Id. at p. 978,
fn. 4.)
Here, as in Bono, Apple employees may be able to avoid
the employer-controlled activity if they make prior
arrangements (i.e., by not bringing a bag, package, or iPhone to
work). But, similar to the workers in Bono, the potential
antecedent “choice” by some employees not to bring any
searchable items to work does not invalidate the compensation
claims of the bag-toting or Apple-device-carrying employees who
are required to remain on the employer’s premises while
awaiting an exit search of those items.
Finally, notwithstanding the IWC’s removal of the word
“required” from Wage Order 7’s “hours worked” control clause,
courts have considered whether an activity is required in
determining whether it is compensable. (Morillion, supra,
22 Cal.4th at p. 587.) But this includes both an activity that is,
strictly speaking, required, and also an activity that is required
as a practical matter. As the Ninth Circuit here observed,
“[w]hether an activity is ‘required’ is a flexible concept.”
(Frlekin, supra, 870 F.3d at p. 873.) The federal court pointed
to other decisions recognizing that “only ‘genuine’ choices — and
not ‘illusory’ choices — avoid compensation liability under
California’s Wage Orders.” (Ibid., citing Alcantar v. Hobart
Service (9th Cir. 2015) 800 F.3d 1047, 1055, and Greer v. Dick’s
Sporting Goods, Inc. (E.D.Cal., Apr. 13, 2017, No. 2:15-cv-01063 -
KJM-CKD) 2017 U.S.Dist. LEXIS 57165.) The Ninth Circuit
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
explained that some “actions . . . are, practically speaking,
required, even though they are nominally voluntary. For
example, a search policy in a cold climate that applied to all
jackets would be effectively unavoidable, even if a person
theoretically could commute to work without a jacket.” (Frlekin,
at p. 873.) Notwithstanding that this case concerns only Apple
employees who voluntarily bring a bag, package, or iPhone to
work “purely for personal convenience,” the federal court
recognized that “as a practical matter, many persons routinely
carry bags, purses, and satchels to work, for all sorts of reasons.
Although not ‘required’ in a strict, formal sense, many
employees may feel that they have little true choice when it
comes to the search policy, especially given that the policy
applies day in and day out.” (Ibid.)
We agree with the Ninth Circuit. Based on our review of
the record, it is obvious that Apple’s exit searches are, as a
practical matter, required. Pursuant to its bag-search policy,
Apple requires all of its retail store employees to undergo exit
searches of their bags, purses, backpacks, briefcases, packages
and personal Apple technology devices every day, and any time
they wish to leave the store. Compliance with the search policy
is mandatory; employees who bring a bag or other carrier to
work — or even carry an iPhone in a jacket pocket — must
undergo a search before leaving the premises or else be subject
to disciplinary action, including termination. Apple employees
may bring a bag to hold any number of ordinary, everyday items,
such as a wallet, keys, cell phone, water bottle, food, or
eyeglasses. It is to be expected that many Apple employees feel
they have little genuine choice as a practical matter concerning
whether to bring a bag or other receptacle containing such items
to work. Moreover, given that Apple requires its employees to
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
wear Apple-branded apparel while working but directs them to
remove or cover up such attire while outside the Apple store, it
is reasonable to assume that some employees will carry their
work uniform or a change of clothes in a bag in order to comply
with Apple’s compulsory dress code policy. Apple’s proposed
rule conditioning compensability on whether an employee can
theoretically avoid bringing a bag, purse, or iPhone to work does
not offer a workable standard, and certainly not an employee -
protective one. (See Dynamex, supra, 4 Cal.5th at p. 952 [the
wage orders are intended to accord workers “a modicum of
dignity and self-respect”].)
Apple’s personal convenience argument rings especially
hollow with regard to personal Apple technology devices, such
as an iPhone. As the United States Supreme Court observed in
Riley v. California (2014) 573 U.S. 373, “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.” (Id. at p. 385.) More
recently, the high court remarked that “individuals . . .
compulsively carry cell phones with them all the time.”
(Carpenter v. United States (2018) 585 U.S. ___, ___ [138 S.Ct.
2206, 2218].) Apple has publicly agreed with the high court’s
description of cell phones, joining an amici curiae brief filed in
Carpenter that characterized smartphones as “practical
necessities of modern life,” “fundamental tools for participating
in many forms of modern-day activity,” and “not just another
technological convenience.” Consistent with this view, Apple’s
CEO Tim Cook recently referred to the iPhone as having
“become so integrated and integral to our lives, you wouldn’t
think about leaving home without it.” (Jim Cramer interviews
Tim Cook: the complete transcript (interview with Tim Cook,
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
Apple CEO) CNBC (May 3, 2017) <https://www.cnbc.com/
2017/05/03/tim-cook-on-jim-cramer-complete-transcript.html>
[as of Feb. 4, 2020].)6
The irony and inconsistency of Apple’s argument must be
noted. Its characterization of the iPhone as unnecessary for its
own employees is directly at odds with its description of the
iPhone as an “integrated and integral” part of the lives of
everyone else. As amicus curiae California Correctional Peace
Officers’ Association aptly observes, “Apple’s position
everywhere except in defending against this lawsuit is that use
of Apple’s products for personal convenience is an important and
essential part of participating fully in modern life.” (Italics
added.) Given the importance of smartphones in modern
society, plaintiffs have little true choice in deciding whether to
bring their own smartphones to work (and we may safely
assume that many Apple employees own Apple products, such
as an iPhone).7
6 All Internet citations in this opinion are archived by year,
docket number and case name at <http://www.courts.ca.gov/
38324.htm>.
7 Apple argues that plaintiffs are estopped from asserting
that the exit searches are de facto required because they agreed
to certify a class based on the theory that Apple employees bring
a bag or iPhone to work “purely for personal convenience.” But
the district court’s class certification order specified that
plaintiffs would not assert that class members were required to
bring bags or personal Apple technology devices to work “due to
any ‘special needs.’ ” (Italics added.) It did not preclude
plaintiffs from asserting that, as a practical matter, they have
little genuine choice regarding whether to bring such items to
work.
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
C. Application of Control Clause to Exit Searches
In sum, we reaffirm our holding in Morillion that “[t]he
level of the employer’s control over its employees, rather than
the mere fact that the employer requires the employees’ activity,
is determinative” concerning whether an activity is compensable
under the “hours worked” control clause. (Morillion, supra,
22 Cal.4th at p. 587.) We also emphasize that whether an
activity is required remains probative in determining whether
an employee is subject to the employer’s control. But, at least
with regard to cases involving onsite employer-controlled
activities, the mandatory nature of an activity is not the only
factor to consider. We conclude that courts may and should
consider additional relevant factors — including, but not limited
to, the location of the activity, the degree of the employer’s
control, whether the activity primarily benefits the employee or
employer, and whether the activity is enforced through
disciplinary measures — when evaluating such employer-
controlled conduct.
Applying these factors here, it is clear that plaintiffs are
subject to Apple’s control while awaiting, and during, Apple’s
exit searches. Apple’s exit searches are required as a practical
matter, occur at the workplace, involve a significant degree of
control, are imposed primarily for Apple’s benefit, and are
enforced through threat of discipline. Thus, according to the
“hours worked” control clause, plaintiffs “must be paid.” (Bono,
supra, 32 Cal.App.4th at p. 975.) We reiterate that Apple may
tailor its bag-search policy as narrowly or broadly as it desires
and may minimize the time required for exit searches by hiring
sufficient security personnel or employing adequate security
technology. But it must compensate those employees to whom
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
the policy applies for the time spent waiting for and undergoing
these searches.
D. We Decline to Consider Whether the Searches
Are Compensable Under the Suffered or
Permitted to Work Clause
Plaintiffs contend the time spent waiting for and
undergoing Apple’s exit searches is also compensable under the
“suffered or permitted to work” clause. Because we have
concluded that plaintiffs are entitled to compensation under the
control clause, we express no view concerning plaintiffs’
alternative argument that the searches are compensable under
the “suffered or permitted to work” clause.
E. Our Ruling Applies Retroactively
Apple asserts that if we conclude the time waiting for and
undergoing exit searches is compensable as “hours worked,” our
holding should be given prospective application only. We are
not persuaded.
“ ‘The general rule that judicial decisions are given
retroactive effect is basic in our legal tradition.’ ” (Mendiola,
supra, 60 Cal.4th at p. 848, fn. 18.) However, “fairness and
public policy sometimes weigh against the general rule that
judicial decisions apply retroactively.” (Alvarado v. Dart
Container Corp. of California (2018) 4 Cal.5th 542, 573
(Alvarado).) For example, prospective application might be
warranted when a judicial decision changes an established rule
on which the parties below have relied. (Ibid.)
Apple contends that it reasonably relied on Morillion’s
holding that purely voluntary activities do not constitute
employer control. But that is neither an accurate description of
our holding in Morillion, nor a fair characterization of the
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
nature of the exit searches at issue in this case. Morillion
addressed compulsory employer-provided transportation to and
from work. (Morillion, supra, 22 Cal.4th at p. 578.) It did not,
as Apple contends, hold that any employer-controlled activity
must be unavoidably required in order to be compensable as
“hours worked.” “In short, [Apple] cannot claim reasonable
reliance on settled law.” (Alvarado, supra, 4 Cal.5th at p. 573.)
Moreover, we have declined to restrict our decisions to
prospective application when doing so “would, in effect, negate
the civil penalties, if any, that the Legislature has determined
to be appropriate in this context, giving employers a free pass as
regards their past conduct” and hence “would exceed our
appropriate judicial role.” (Ibid.) Accordingly, we see no reason
to depart from the general rule that judicial decisions apply
retroactively.
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FRLEKIN v. APPLE INC.
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
We conclude that plaintiffs’ time spent on Apple’s
premises waiting for, and undergoing, mandatory exit searches
of bags, packages, or personal Apple technology devices, such as
iPhones, voluntarily brought to work purely for personal
convenience is compensable as “hours worked” within the
meaning of Wage Order 7.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
EDMON, J.*
* Presiding Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
26
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Frlekin v. Apple Inc.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX on request pursuant to rule 8.548, Cal. Rules of Court
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S243805
Date Filed: February 13, 2020
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Counsel:
The Kralowec Law Group, Kralowec Law, Kimberly A. Kralowec, Kathleen S. Rogers; McLaughlin &
Stern, Lee S. Shalov and Brett R. Gallaway for Plaintiffs and Appellants.
The Turley & Mara Law Firm, William Turley and David T. Mara for Consumer Attorneys of California as
Amicus Curiae on behalf of Plaintiffs and Appellants.
Kingsley & Kingsley, Eric B. Kingsley and Ari J. Stiller for Bet Tzedek Legal Services as Amicus Curiae
on behalf of Plaintiff and Appellant Amanda Frlekin
Messing Adam & Jasmine, Gregg McLean Adam, Yonatan L. Moskowitz; David A. Sanders and Daniel
M. Lindsay for California Correctional Peace Officers’ Association as Amicus Curiae on behalf of
Plaintiffs and Appellants.
Leonard Carder, Aaron D. Kaufmann; Cohelan Khoury & Singer, Michael David Singer and Janine R.
Menhennet for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiffs and
Appellants.
Littler Mendelson, Richard H. Rahm, Julie A. Dunne; Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr.,
Joshua S. Lipshutz, Bradley J. Hamburger, Justin T. Goodwin, Lauren M. Blas and Christian Briggs for
Defendant and Respondent.
Sheppard, Mullin, Richter & Hampton, Karin Dougan Vogel, Samantha D. Hardy, Richard J. Simmons and
John Ellis for Retail Litigation Center, Inc., and National Retail Federation as Amici Curiae on behalf of
Defendant and Respondent.
Paul Hastings, Paul W. Cane, Jr., Zachary P. Hutton and Blake R. Bertagna for California Employment
Law Council and Employers Group as Amici Curiae on behalf of Defendant and Respondent.
Horvitz & Levy, Jeremy B. Rosen, Felix Shafir and Eric S. Boorstin for Chamber of Commerce of the
United States of America, California Chamber of Commerce and Civil Justice Association of California as
Amici Curiae on behalf of Defendant and Respondent.
Corbin K. Barthold for Washington Legal Foundation as Amicus Curiae on behalf of Defendant and
Respondent.
--- PDF page 29 ---
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kimberly A. Kralowec
Kralowec Law
750 Battery Street, Suite 700
San Francisco, CA 94111
(415) 546-6800
Theodore J. Boutrous, Jr.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
(213) 229-7000