Attorneys for Apple have responded to a lawsuit by current and former employees asking for back wages for bag security checks, saying the plaintiffs have failed to prove the practice affects all store employees, and asking that collective-action status be denied. Apple also provided testimony from an expert who watched store video surveillance tapes, and disputed the plaintiffs’ estimates that bag checks take 20 minutes or longer to conduct. Two main plaintiffs filed the lawsuit in June 2013 claiming they’re owed back wages for off-the-clock time to conduct bag checks whenever they left the store for breaks, meal periods and at the end of the shift. Since the original filing, the plaintiffs have filed an amended complaint, Apple has filed an answer, and late last year Apple took depositions from nine employees who have joined the lawsuit. The court documents paint the plaintiffs as a rag-tag band of former Apple employees who have spotty memories, vague knowledge of Apple’s policies, and a history of terminations and disciplinary actions. Overall, Apple claims the bag checks are “not common,” apply only to those who bring Apple products to work, and consume a minimal amount of time.
The primary plaintiffs in the lawsuit are Dean Pelle and Amanda Frlekin, with “opt-in” plaintiffs Adam Kilker and Brandon Fisher. At least 10 other employees have filed declarations (pdf) affirming they also were subjected to off-the-clock bag checks. The plaintiffs’ attorneys are attempting to have the court certify the case for collective-action status, meaning the law firm would represent all similarly-situated Apple retail store employees in the action. Apple is attempting to convince the court otherwise, and is looking to have the case dismissed before trial.
In the depositions last year, Apple’s attorneys probed the plaintiffs to determine how they became linked to the lawsuit, and if the firm of McLaughlin & Stern (NYC) had reached out to the Apple employees, “trolling” for plaintiffs. In her testimony, Frlekin said she had been contacted by former Apple retail employee Alex Yu, who told her she would be “a good benefactor or good asset” towards the lawsuit. In fact, it was Pelle who said he originally reached out to attorney Louis Ginsberg to pursue the bag check issue.
During the depositions conducted by Apple’s San Jose-based law firm Littler Mendelson, most of the plaintiffs repeatedly said they could not recall details of their training about Apple’s policies and procedures, pay rates, dates and times and names of other involved people. In some cases the plaintiffs’ sworn declarations, filed last year to accompany the lawsuit, were much more specific than the plaintiffs’ current memory. Noticing that, Apple’s attorneys questioned the plaintiffs, looking to see if their attorneys had written the declarations, or if the plaintiffs actually recalled the information themselves.
Samsung Is The Solution
During the depositions, Apple attorneys continually made the point that only employees who chose to bring Apple products to the store were subjected to bag checks. They noted that employees were free to bring Samsung or other branded electronic gear to work, and no bag checks would have been required. The attorneys got the plaintiffs to admit a bag check wasn’t required “every single time” the employees left the store, as they had stated in their declarations.
“Your declaration isn’t a hundred percent accurate, correct?” — Apple attorney
In his deposition, Pelle was perhaps the most vocal of the plaintiffs, armed with six years of work time with Apple retail. When asked by Apple’s attorney if he could have avoided a bag check simply by not bringing Apple gear to work, Pelle was pointed. “That would be Apple’s convenient answer,” he said. “But I am a living human being in a city that commutes. I don’t see how that makes any sense. And I even don’t see how that’s reasonable for you to expect when you tell me I can’t wear the (Apple) shirt.”
Many of the deposition questions centered on specifics about how much time was spent conducting bag checks, and how they were conducted. At one point Apple’s attorneys asked Fisher to act out how a bag check was conducted. In general, it involved an eyesight-only search of any bags being carried by an employee, and matching the serial numbers of any Apple products with a Technology Card. That card is issued by a manager when an employee first presents an Apple product, and lists the products and their serial numbers.
In his declaration, Elliot Beltzer said on product launch days “several hundred” employees would be at the store, generating a line of 30 employees waiting for a bag check. That process could take 25 minutes, he testified. Like others, Beltzer explained that the check out time included retrieving an iPhone, laptop or iPad from a pocket or bag, flipping to the Settings–>General–>About menu, and the scrolling up to the Serial Number field to show the manager or security guard.
Most of the plaintiffs also explained that it took time to find an available manager or security guard who could perform the bag checks. In some cases managers were busy witih customers and couldn’t be interrupted. In many stores there were no assigned security guards to make the checks.
In her sworn declaration, Frlekin mis-stated that she was a full-time employee—she was only part-time. And she admitted that bag checks didn’t occur every time she left the store. “Your declaration isn’t a hundred percent accurate, correct?” the Apple attorneys asked over and over again to Frlekin and the other plaintiffs. The plaintiffs agreed.
Apple attorneys also explored who calculated or estimated the amount of time the bag checks took, and how much money the plaintiffs might be entitled to. During Fisher’s testimony, he admitted the time estimates he included in his declaration came “from discussion with my lawyers,” not his own calculations, a damning admission.
Apple presented their own perspective on the duration of bag checks. First, they filed declarations from other Apple employees who said it took just 30 seconds, “if that.” Peter Jordan, a former SoHo (NYC) employee and now a West 14th Street (NYC) senior manager, testified that in some cases a bag check took as short as five seconds.
Interestingly, Apple also used the Internet to help disprove the plaintiffs’ claims of lengthy bag check times. Among the documents filed with the court were copies of comments posted on the MacRumors.com Web site in response to the original story about the lawsuit. In one comment, someone named “Bearbo” posted, “You worked for the Apple Retail store, and you had to wait 15 minutes per shift, every single shift, for bag check after clocking out? That’s just BS.” The person said that bag checks were infrequent and, “I never had to wait more than 1 minute between clocking out and leaving the store.”
In response to the plaintiffs’ request for collective-action status, Apple hired an expert to study the bag check procedures. Dr. Randy Hall, VP research at the Daniel J. Epstein Department of Industrial Systems Engineering at the University of Southern California helped analyze “time punch data” from stores, and also reviewed video surveillance from three stores where some of the plaintiffs worked.
Hall reported that at the Fifth Avenue store bag checks times ranged from zero to 122 seconds, with an average of 20 to 21 seconds per employee. “Notably, time spent performing the check did not increase during peak hours, and the average waiting time at the 5th Avenue store during the busiest punch-out period on November 29, 2013 (“Black Friday”) was 9.5 seconds per employee,” Apple stated. That compared to 3.5 seconds during a more typical period of 7:45 a.m. to 8:15 a.m. on August 31, 2013.
Hall observed waiting times of just zero to 49 seconds during the observation period, and estimated that a “very high-end estimate” for both the bag check and Technology Card was “a mere 30 seconds.” That estimate was based on the “relatively large” Fifth Avenue store. At the 105-employee Green Hills store, bag checks lasted no more than five seconds, “where such checks did occur,” Apple wrote. “No lines of employees waiting for inspections were observed at all at Green Hills.”
Apple redacted the public court document related to the video surveillance, saying it showed the position, angle, quality and scope of its security systems. Also, the video itself showed employees and customers, whose privacy Apple wanted to protect. However, it summarized the study results in its opposition filed with the court.
Discipline & Terminations
Of the nine depositions filed with the court, seven defendants were fired or resigned under adverse circumstances.
According to a deposition, Pelle was fired (pdf) for conduct during a confrontation with a customer outside the West 14th Street store who was suspected of shoplifting. In his testimony, he linked his firing and the bag check lawsuit. “Like, we are being scrutinized for pilferage in the store, but yet I was terminated when I was trying to protect the store,” he said. “And I felt like it was directly correlated how we are being scrutinized in a way that it seems unfair. And at the same time, we are going to be, then, compensated for it.”
When Apple’s attorney asked him if his termination spurred him to seek an attorney, Pelle said, “Definitely.”
Fisher was asked to leave Apple, he testified, because, “my passion for Apple was waning and I wasn’t excited anymore.” He felt it was a leave-or-be-fired situation.
Frelekin quit Apple after she became the primary care-giver for her uncle, who had medical conditions. During her testimony, she denied that she left in anticipation of being fired after receiving a misconduct warning for engaging in “inappropriate workplace behavior.” According to Apple’s attorney, she was accused of writing the C-word on an EasyPay device, referring to a manager at her store. Frelekin said she was never told of the specifics of the warning, didn’t remember writing the word when it occurred in January 2013, and then at the time of the deposition last November still had no recollection of writing the word. “Using that word—I don’t recall using that word. I do recall writing something of which I do not remember,” she said.
Strangely, Frlekin testified that she never received a final paycheck from Apple, but never calculated how much she was owed, and never contacted the company to follow-up. Apple filed 40 pages of check-in/out records (pdf) spanning 2010 to 2013 to document every clock in-out that Frlekin made. The documents indicates the level of detail collected by the system.
Kilker was fired for fraud, but claimed he recalled few of the details. During his deposition, Apple’s attorney said Kilker was accused of purchasing products at his store using an employee discount. Kilker then allegedly returned the merchandise to another store for full value. He admitted to the one-time deception, saying he was in a “money crunch” at the time. He immediately reimbursed Apple “about $1,000″ after being fired, he said. However, the Apple attorney asked if the amount was actually $1,700, and Kilker said he couldn’t remember.
Melody Idakarr said she became ill during her employment with Apple. In her deposition she described panic attacks, “from being in such a claustrophobic environment. I felt like I was suffocating all the time.” She went to one doctor, who wrote her a note confirming her illness. However, an Apple manager told her the note was insufficient, and she requested a note from the second doctor Idakarr was seeing. At that point Idakarr had been off-work for five months. The second doctor didn’t respond to her requests for a medical note, and she couldn’t contact him. Later, she visited the office and learned the doctor had left town and had taken all his records with him. She left Apple voluntarily.
Elliott Beltzer was terminated for misconduct, stemming from, “a disagreement involving a relationship that ended poorly,” involving another Apple retail employee. He claimed that the specifics of the allegation were never explained to him during a termination meeting with a manager.
Aaron Gregoroff was fired over allegations that he fraudulently listed his father on company benefit forms as a domestic partner. The listing meant that Gregoroff’s father would be eligible for benefits usually provided to spouses, including medical insurance. Gregoroff claimed he did so, “in conjunction with the HR help line.” But Apple’s attorney questioned him further, asking, “Have you ever had a domestic partner, meaning someone—well, have you ever been in a gay relationship?” Gorgoroff answered, “No, not that I recall.” The attorney asked, “Fair to say that you and your father were not domestic partners?” Gregoroff replied, “That’s correct.”
The Interesting & Odd
Besides the mostly dry legal material, the latest documents filed in the lawsuit provide some interesting insights or amusements.
During Frlekin’s deposition, Apple attorneys questioned her closely to see if she were prone to embellishment, which might point to inaccuracies in her estimates of bag check times. They noted her claim to have been a cheerleading captain, and yet she was home-schooled. Frlekin explained she was on an independent cheerleading team. They also asked if she had ever claimed to be an exotic dancer, and Frlekin denied it.
When asked, none of the plaintiff knew how many employees were employed at their store. Also, few of those who gave testimony had Apple products when they first started their employment.
Apple required employees to clock in and out using a computer-based program termed “CICO” or CRONOS. That required clocking in-out from specific back-of-house computers designated for work-related functions. At some point, the application was moved to the EasyPay devices as Time 2.0. However, some of those who were deposed said there were never enough EasyPay devices, and devices that were working, to quickly clock in-and-out. Pelle testified that the EasyPay system had “a million flaws,” and that he didn’t know anyone who used it.
At one point during Pelle’s testimony he admitted communicating in a Google Group about unionizing. Apple’s attorney quickly began questioning him about that, including asking the names of everyone who participated in the group and what was discussed. “I don’t know, don’t know, don’t remember,” Pelle replied.
In written communications, the plaintiffs’ attorneys asked Apple about also deposing the general managers for the Apple “57th Street” store. Apple’s attorneys pointed them to the Fifth Avenue store at the corner of 59th Street and Fifth Avenue.
Retail store employees have a 10-minute clock-in/out window, during which they won’t be penalized for being late—or early.
In a court filing, Apple said the Fifth Avenue (NYC) store employs “roughly” 800 employees. In an Apple employee declaration filed with the court, the number was specified as 779.
Update: In March 2014 Apple’s attorney deposed former Lenox Square (Geo.) Apple store employee Taylor Kalin, who had already filed a separate pay-related lawsuit against the company. In seven hours of testimony he explained how bag checks were handled, and that he was owed about 100 hours of pay for projects he completed off the clock. At several points Kalin also provided a revealing explanation of Apple’s employee culture of doing more than expected in order to advance through the company. Download (pdf) Kalin’s entire deposition transcript, or just the excerpts explaining Apple’s culture.
In May 2014 the plaintiffs filed a opposition (pdf) to summary judgement request in which there was a chart (pdf) showing how much time the plaintiffs allegedly spent waiting for bag checks, and the corresponding amount of money they are owed depending upon their pay rate at the time. The plaintiffs also provided a list (pdf) of their personal technology at the time, and a chart (pdf) analyzing the Apple store video surveillance tapes for bag check activity.
On May 30, 2014 Judge Walter Alsup denied Apple’s motion for summary judgement, and ordered the California labor issues to move forward. However, the federal-related issues were stayed until the U.S. Supreme Court decides the related Busk case, probably in spring 2015. The judge essentially ruled the issues are too ambiguous to decide in summary fashion, and a trial should be held. Download (pdf) the transcript of a court hearing where the summary judgement was argued, and the judge’s decision.E-mail this story