Do Unpaid Security Bag Checks Violate The FLSA?

Workers have a reasonable expectation to get paid for the work they do, and the Fair Labor Standards Act provides protections to ensure workers receive proper payment. The Act provides regulations for matters such as minimum wage, overtime pay, and recordkeeping. Accurate recordkeeping is important as it guarantees that individuals are compensated for all time spent working. It also ensures that eligible employees receive overtime pay, currently set by the FLSA as at least time-and-a-half for all hours worked over 40 in a workweek.

A number of companies have faced legal action recently over allegations that they failed to compensate workers for all time spent working. Specifically, the question of bag security checks – carried out before and after shifts, and not recorded as paid work – has been at the heart of three class action lawsuits. Workers at CVS, Apple, and Macy’s have filed separate complaints accusing their companies of violating the FLSA by requiring them to submit to bag checks without being paid for this time.

In many cases, these security checks may only last a few minutes and are considered a standard security. So, does the time really need to be paid for by the company? To plaintiffs, the answer is clear.

Steven Quinlan, a former Macy’s employee, filed a putative class action in California earlier this year, claiming that the company violated wage laws when it required its staff to undergo off-the-clock bag checks when arriving, leaving, and taking breaks. While Macy’s has argued that the policy is neither uniform nor systematic, calling for random rather than across-the-board checks, Quinlan seeks to certify a class of former and current Macy’s workers who were subject to the unpaid bag checks. District Judge Dean D. Pregerson ruled in May that while the amount of time needed to check workers’ bags varied, the accusations themselves had some merit, and he refused the company’s request to dismiss.

CVS, meanwhile, is facing a certified class of more than 40,000 workers who allege that the company failed to pay them for security inspections. The certification, granted in June by Judge Richard E. Rico, followed employees’ claims that the company had a uniform bag check policy, yet failed to pay workers for the time they spent in these checks, which occurred before they left the premises but after the clock out/ Similar to Macy’s, CVS argued that its policy was not uniform and only applied in specific cases, such as times when an employee had made a purchase during working hours and was required to show the receipt. Lead plaintiff Kimberly Murphy also alleged that she was required to label her personal property off-the-clock, an act that ‘unambiguous[ly violates] the legal requirement that employers pay for all time that employees are subject to the control of the employer.’

Judge Rico certified the class in a tentative ruling, with class membership made up of former and current CVS employees who were subject to bag checks and personal property labeling.

While companies seem quick to deny that official bag check policies exist, the FLSA’s regulations requiring that all time spent ‘subject to the control’ of an employer may make the existence – or not – of a company-wide policy a moot point, providing plaintiffs can show that in reality they were routinely required to undertake tasks without pay.

In Apple’s case, two former employees have accused the company of failing to pay them for up to 90 minutes per week because of time spent after clocking-out in daily security checks. The complaint, filed in California federal court, accuses the company of having a uniform policy of searching bags when employees leave for meal breaks. The policy also applied when employees left at the end of their shifts, the complaint says. As many workers take meal breaks around the same time, lines can form that require workers to wait, unpaid, while subject to the company’s control, plaintiffs say. The complaint claims that this violates both the FLSA and state wage laws, and seeks an injunction against Apple, which will force the company to either change its policy or end the checks entirely.

If bag checks are compulsory – i.e. cannot be avoided – yet take place after workers have clocked out, then it is possible those employees have a legitimate grievance. Employers must be sure that they comply fully with the FLSA. Workers have the right to take action if their rights are violated and, as the cases mentioned show, are often willing to do so.

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