iPhone, iPad, iPod . . . iWantCompensated: Must Employees Be Paid Simply for Waiting in Line?

The recent unveiling of the new 5S and 5C iPhone models isn’t the only way Apple has been making headlines lately.  Recently, two former Apple store employees filed a class action lawsuit against the tech giant, alleging violations of the Fair Labor Standards Act (FLSA) and seeking millions of dollars for unpaid wages and overtime compensation.  The most interesting part of the suit is that it isn’t based on a typical FLSA violation, such as the failure to properly compensate employees for their breaks.  

Instead, the suit alleges that employees who work at the approximately 300 Apple stores throughout the United States have been regularly required – per company policy – to wait in line and undergo two off-the-clock security bag searches each shift.  The first occurs when they leave the store for their unpaid meal breaks.  The second happens after they have clocked out at the end of their shifts.  Obviously, Apple takes concerns about employee theft quite seriously. 

While this type of wage and hour claim has yet to become a widespread trend across the nation, it’s not the first time this theory has been alleged in an FLSA action.  Back in 2010, Integrity Staffing Solutions – the company that provides staffing for warehouses owned and operated by the online superstore, Amazon.com – was sued in Nevada for essentially the same alleged FLSA violation that Apple currently faces. Amazon warehouse employees were required to go through a security check after each shift after they had already clocked out. They claimed the security lines were often so long that the wait time to proceed through screening would take up to 30 minutes. Like the Apple lawsuit, the case involving Amazon remains pending, so at this point, there is not a lot of authority from the courts on whether such waiting time constitutes compensable work. 

In general, the Fair Labor Standards Act requires employers to compensate all non-exempt employees at a rate of not less than one and one-half the regular rate of pay for work performed in excess of 40 hours a week.  The Act also requires employers to pay at least minimum wage for all hours worked.  While employers may be inclined to believe that the FLSA only requires employees to be compensated for the time they spend actually performing the tasks required of their position, past cases have shown that the obligation to compensate employees under the FLSA is not so limited.  In a similar vein to the issue of time spent waiting in line, courts have held that time spent by non-exempt employees “donning and doffing” protective gear at the beginning and end of the work day may be compensable “work” under the FLSA. 

While it remains to be seen how the courts will rule in the cases involving Apple and Amazon, these types of claims could catch on like wildfire in the forest of employment law, which has seen a lot of class “action” recently, regardless of success or failure.  Therefore, employers who require employees to undergo any form of pre- or post-shift security screening – and do not compensate their employees for it – should probably reconsider those practices or, at least, consult with able legal counsel to discuss whether or not that remains the best course of action in their unique situation.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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