Security Footage Sinks Employee Lawsuit Targeting Employee Bag Checks

Employee bag checks and loss prevention inspections have been a source of recent controversy in the retail world.

employee bag checks

Nike has prevailed in a class action lawsuit filed by hourly retail workers demanding that the company pay them for the time they spent waiting for loss prevention inspections after clocking out and before leaving stores.

According to Seyfarth Shaw LLP, Nike’s attorneys in Rodriguez v. Nike Retail Services, the court decision was influenced by the retailer’s time and motion study that showed associates spent an average of 18.5 seconds in off-the-clock employee bag checks—and that 60.5 percent of all exits required zero wait time. US District Judge Beth Freeman said Nike store employee Isaac Rodriguez didn’t submit evidence contradicting Nike Retail Services study, which was based on 700 hours of security footage.

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That length of wait is too trivial and difficult to capture to require payment, the judge suggested. “Evaluating Nike’s evidence under the de minimis defense, and recognizing that daily periods of up to 10 minutes have been found to be de minimis, Judge Freeman ruled that the workers hadn’t shown that their off-the-clock exit time was close to meeting that threshold,” according to Nike’s attorneys.

“As the court found, brief exit inspections are a modern business reality that most retailers, like Nike, use for the legitimate reason of reducing theft,” Nike spokesperson Greg Rossiter told Law360.

Although Nike employees lost their claim, the California Supreme Court is reviewing the de minimis doctrine in a separate legal case against Starbucks. Troester v. Starbucks claims the company violated the California Labor Code by failing to pay an employee for the brief time he spent closing up the store after he clocked out at the conclusion of certain shifts. In granting Nike summary judgment, the judge said she was compelled to apply existing law to the case and would not “predict how the California Supreme Court will rule.”

“For the moment, this ruling is good news for employers who can put away their stop watches when small increments of off-the-clock time are irregular and difficult to record,” according to Seyfarth Shaw. “But keep your eye on the ball because the California Supreme Court will be making the final call on the de minimis doctrine and whether or how it applies in the state.”

In a similar case, DICK’s Sporting Goods has asked the Eastern District of California to stay a workers’ suit while waiting on the California Supreme Court to rule on the Starbucks case and a related case against Apple. DICK’s workers countered that the court should not stay their class action, alleging that their claim is different than the two other wage suits before the state’s highest court. In addition to claiming they should be paid for time spent in store security checks, which also involves visual inspections of workers and the physical inspection of personal belongings other than bags, DSG workers are asking to be reimbursed for clothing-related expenses (Greer et al. v. DICK’s Sporting Goods).

Employees have raised the matter of unpaid time during security checks in several venues, with courts typically siding with employers. In 2015, for example, a California judge denied a plaintiff’s request for class certification in a lawsuit accusing Nordstrom of failing to pay its workers for time spent waiting in line and undergoing bag checks during their work shifts. Although the loss prevention checks were alleged to be mandatory, the employee admitted in her deposition that employee bag checks could be avoided if employees refrained from bringing bags into the workplace.

Employees have also lost cases involving longer wait times. For example, employees of a nuclear power station sued under the Fair Labor Standards Act (FLSA) for compensation for the 10 to 30 minutes per day they spent passing through multiple layers of security, which included waiting in line for badge inspections, random vehicle checks, passing through radiation detectors and x-ray machines, and waiting to use the biometric handreader.

While the appeals court noted “some force” to the workers’ claim that security is becoming increasingly invasive, layered, and time-consuming, it ruled that passing through security isn’t covered by the FLSA because it’s not a “principal activity” of the job, noting that facility visitors—not just workers—were required to go through the same security measures (Gorman Jr. et al. v. The Consolidated Edison Corporation).

Comments
  • Leave a time clock or computer capable of clocking out by the door. As soon as the teammate gets their bag checked they can walk over and clock out and wait to exit the store. Pretty simple solution that has never failed where I have been an LPM.

    Reply

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