Lawsuit Claims Back Wages For Off-Duty Bag Checks

July 31, 2013

A duo of Apple retail employees has filed a lawsuit claiming they’re owed over $1,000 each for overtime they worked while being subjected to security bag-checks required of all employees when they go off duty. According to the complaint filed in a California federal court last week, Amanda Frlekin and Dean Pelle had to wait from five to 10 minutes in a line of other employees leaving work at the same time, after they had already clocked out for the day. As a result, they spent nearly 90 minutes each week performing work-related tasks, but were not compensated with overtime. The two employees also said the pay situation is applicable to all other Apple retail employees, and asked the court for class action status. Bag checks are a mandatory and routine procedure for Apple stores—and many other retailers. They are performed as one element of a comprehensive security program to prevent employee theft that also requires employees to declare all personal Apple products they bring to work each shift.

The lawsuit was filed July 25, 2013 in the U.S. District Court for Northern California by two New York state law firms and a California firm. It’s not clear how the plaintiffs working on separate coasts came to be involved with the three firms. The action mirrors lawsuits filed by employees against Polo Ralph Lauren in 2006 and Forever 21 last year. It also seems to have been prompted by a U.S. District Court ruling just last April that allows a similar security check case to go forward against Amazon.com Inc.

Frlekin worked almost three years as a Specialist at Century City (S. Calif.). Pelle was a Specialist at Lennox Mall (Atlanta) for one year, then did one year at the “Wellington Beach retail store in West Palm Beach, Florida” (probably Wellington Green, Wellington, Fla.). He then moved and worked four years at the West 14th Street (NYC) store.

Frlekin was paid from $12.10 to $15.60 per hour, the lawsuit notes, while Pelle was paid “approximately” $18.75 per hour.

Retail store employes clock in when they arrive at work using software developed by Kronos Inc., the lawsuit states. They then clock out when they go on a meal break or at the end of their shirt.

Both former employees they were required to undergo “uncompensated” personal package and bag searches when they left the store for meal breaks and at the end of shifts. “These security checks were significant, integral, indispensable, not a de minimis task or request and done solely for Apple’s benefit to prevent employee pilferage,” the lawsuit states.

Most importantly, “A large number of Specialists and Managers leave for lunch at the same time and/or end their shift at the same time,” the lawsuit says. Therefore, the process of bag checks took five minutes at meal breaks and 10 minutes at end-of-shift because employees has to wait in a line with other employees. In Pelle’s case, the lawsuit claims he was required to wait in line at shift’s end “for 10-15 minutes every day during the week of February 19, 2013 to Febaury 23, 2013.”

The plaintiffs say the uncompensated overtime amounted to 50 minutes to 1½ hours during any given week. Based on Pelle’s pay, this amounted to approximately $1,400 in uncompensated hours worked and overtime, the lawsuit states.

Both Frlekin and Pelle said their supervisors knew of the bag checks and they memorialized their names in the lawsuit.

Both plaintiffs asked the court for unpaid wages and overtime, interest, “and such other legal and equitable relief as the Court deems just and proper.”

Download (pdf) the entire lawsuit for more details.

Employee Theft

Apple and other retailers are justified in focusing on employee theft—one survey noted that dishonest employees stole an average of 5½ times the value of merchandise taken by shoplifters in 2012. Further, both employee apprehensions and the value of merchandise recovered from them increased from 2011 to 2012. In all, over $50 million in merchandise was recovered from dishonest employees by just the 23 major retailers who participated in the survey.

Apple’s own training manual covers the topic under the “Internal Theft” heading. It includes stealing money, merchandise or software, the manual says, along with giving discounts to friends or strangers, conspiring with vendors or processing fraudulent credit card transactions.

The training manual even provides some reasons why employees might steam from Apple, such as financial issues, that the company “won’t miss one computer,” or in retaliation for being passed over for a pay increase or promotion. Another reason might be, “An employee may feel that Apple owes him or her something extra for all of his/her hard work.” Whatever the reason, “Apple does not tolerate dishonest at any level,” the training manual notes.

To combat theft, Apple follows industry-standard procedures to minimize the opportunity for crime. Employees are not permitted inside the store alone, and at least one manager must be present, for example. Trash removal must be supervised and inspected by a manager (and trash bags must be transparent).

As for bag checks, the manual states, “Purse, backpack, book bag, and package inspections must be conducted by a manager every time an employee leaves the store (for example, breaks, lunches, shift changes, and so on). This policy applies to all employees, including management.” If an employee routinely brings his/her iPod to work to use during meal breaks, it must be logged on a “Personal Technology Card” so its ownership can be verified if necessary.

At some stores, security guards have been seen performing bag checks instead of a manager.

End of Shifts

Of course, not all employees leave work at the same time for meal breaks or at the end of their shift. In fact, with a mix of full-time and part-time employees, there are employees leaving the at almost every hour at a typical mall Apple store. A variety of factors creates this periodic distribution of employee departures, which should be a consideration to attorneys prosecuting this civil lawsuit.

Like most retailers, Apple uses a mix of full-time and part-time employees, all working either three, four or five days a week. Some employees begin before the store opens and others stay after the store closes. Some work the same shifts each day while others work different hours during their work week. At one typical, large mall store, about two-thirds of the employees work a 40-hour week, with the rest part-timers. This store would have 16 different shift ending times during the work week, either on the hour or half-hour.

The bag checks are usually performed in the public retail space, and are visible to anyone who is observant. Typically, they involve a wave, fist-bump or high-five between the employee and manager, and a quick pull-open of any bag the employee is carrying. The inspection is usually only visual, without any rummaging through the bag by the manager or security guard.

Just as human nature is random, so are the employees arriving at the front door to leave work. Most observable bag checks take just 10-15 seconds. And if 10 employees arrived for a bag check at once, for example, only the last employee would be required to wait the longest time.

The graphs below depict a actual, large mid-America Apple store, and the times at which shift end from two days—it varies from day to day. Sundays and Tuesdays are unique: some employees stay until 11 p.m. and midnight respectively to handle various product set-up and graphics installation tasks.

According to the graph, eight of the 14 off-duty times involve fewer than five employees on a Tuesday. Four of the times involve just one employee leaving work at a time. Saturdays are much more congested, involving up to 14 employees going off-duty twice during the day.

Based on this information, the plaintiffs seem to have a high burden of proof. Frlekin and Pelle claim they waited “10-15 minutes every day” during a specific week. That seems to imply they always went off-duty at a busy hour/half-hour, always arrived for a bag check simultaneously with all the other employees going off-duty, and were always within the second half  (or even last one-quarter) of the employees waiting for a bag check.

The process of clocking out naturally creates a bottleneck of employees doing off-duty. However, based on even a modest amount of randomness in employee activities after clocking out, any one employee would arrive to the bag-check point at different times most days. Combined with the randomness of other employees’ behavior, any one employee’s position in any line would also be different on most days.

The lawsuit did not state how the plaintiff’s intend to provide proof in any future trial of their claims of waiting in line, including whether any of Apple’s own store surveillance video might show the bag check waiting lines.

On a typical Tuesday at a mall Apple store, the distribution of shift ending hours is wider, with fewer employees leaving at each hour.

On a typical Saturday, the end of shifts is weighted more toward 6 p.m., 9 p.m. and 10 p.m., with up to 14 employees leaving at the same time.

Download (pdf) the chart of a typical Apple store’s ending hour times that is the basis for these charts.

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