Ninth Circuit Amends Opinion on Apple Bag Search Case, Allows for De Minimis Argument on Remand

On Thursday, the Ninth Circuit issued an amended order and amended opinion regarding the plaintiffs-appellants wage and hour class-action suit against Apple, where Apple employees sought compensation for time spent waiting in line for and undergoing exit searches. The suit was before Circuit Judges Susan P. Graber and Michelle T. Friedland and District Judge Consuelo B. Marshall. Judge Marshall issued the court opinion. The amendments allow for Apple to argue that the time spent searching the bags is de minimis on remand.

The amended opinion still reversed the Northern District of California’s decision, which was in favor of Apple, and remanded with instructions to grant the plaintiffs’ motion for summary judgment as to whether this time “waiting for and undergoing exit searches pursuant to Apple’s ‘Employee Package and Bag Searches’ policy is compensable as ‘hours worked’ under California law and determine the remedy.”The panel noted that “the California Supreme Court concluded that time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees was compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order 7.” Thus, they found the plaintiffs are entitled to summary judgment on this issue.

In its supplemental briefing, Apple claimed that disputed information precludes summary judgment in the plaintiffs’ favor because some class members “did not bring bags or devices to work, were never required to participate in checks or worked in stores with remote break rooms where they stored their belonging” and because Apple disputed if the policy “was enforced through discipline.” However, the court held that these disputed facts “pertain solely to individual remedies, not to the main legal question as to class-wide relief.”

The Ninth Circuit noted that on remand, the district court will resolve any of these factual disputes and Apple can make its case on remand if the time spent undergoing a search is found to be minimal.

The original opinion filed in September was amended to replace certain language in the previous opinion that originally stated: “Apple failed to raise this argument before the district court in opposing Plaintiffs’ motion for summary judgment; the argument is therefore forfeited.” Instead the opinion states “It is unclear whether this issue was adequately raised in the district court, and the district court did not reach it. On remand, the parties may make their respective arguments about preservation of this issue and its merits, so the district court may consider those arguments in the first instance.” The Ninth Circuit reiterated that it will not entertain petitions for rehearing or rehearing en banc.

The plaintiffs are represented by The Kralowec Law Group and McLaughlin & Stern LLP. Apple is represented by DLA Piper LLP, Littler Mendelson P.C., and Gibson Dunn & Crutcher LLP.