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Ninth Circuit Revives Labor Suit Over Apple Employee Bag Checks

Apple must face claims that it stiffed thousands of California retail employees for time spent undergoing security bag checks, but the tech giant will get a second chance to argue that the time it takes to search bags is too trivial to matter.

SAN FRANCISCO (CN) — Apple must face claims that it stiffed thousands of California retail employees for time spent undergoing security bag checks, but the tech giant will get a second chance to argue that the time it takes to search bags is too trivial to matter.

The Ninth Circuit on Thursday amended its prior order reversing a federal judge’s November 2015 finding that retail employees were not entitled to pay for time spent having their bags checked by security guards. The reversal came after the California Supreme Court ruled in February that workers should be paid for that time, a decision prompted by the Ninth Circuit asking it to resolve that question.

On Thursday, a Ninth Circuit panel amended an opinion issued on Sept. 2, which ordered a federal court to reconsider the matter. The amended order clarifies that one of Apple’s defenses — that bag-check time was “de minimus” or too minor to matter — may still be fair game.

In its Sept. 2 decision, the three-judge Ninth Circuit panel found Apple failed to raise its “de minimis” argument when opposing Apple employees’ motion for summary judgment in 2015.

“The argument is therefore forfeited,” Senior U.S. District Judge Consuelo Marshall wrote for the three-judge panel.

Marshall, a Jimmy Carter appointee sitting on the panel by designation from the Central District of California, wrote the opinion on behalf of a unanimous three-judge panel.

On Sept. 17, Apple filed a petition for an en banc rehearing, arguing the panel inserted a “factual mistake” in its opinion by wrongly declaring that the company “forfeited” its “de minimis” defense during previous court proceedings.

“The record shows that Apple did raise and preserve this defense throughout the district court litigation, including in its answers to the various iterations of plaintiffs’ complaints and a pre-certification motion for summary judgment,” Apple wrote in its petition for an en banc rehearing.

Apple said U.S. District Judge William Alsup acknowledged the company’s right to raise that defense when he split the case into a two-phase trial plan so the question of whether workers are entitled to pay for bag-screening time could be decided in Phase 1 and Apple’s “de minimis” defense claims could be litigated in a potential Phase 2.

“The de minimis defense remains very much in play and was in no sense forfeited,” the company argued.

Attorneys for the plaintiff class responded in an Oct. 9 brief that Apple failed to include evidence that it reserved the right to raise the “de minimis” defense in the record it provided to the Ninth Circuit on appeal. Plaintiffs said Apple’s petition “merely serves to further delay vindication of the class members’ right to compensation for all ‘hours worked.’”

On Thursday, the three-judge panel resolved that dispute by issuing a correction. It replaced one sentence stating that Apple forfeited the right to raise its “de minimis” defense with clarifying language.

“It is unclear whether this issue was adequately raised in the district court, and the district court did not reach it,” the panel wrote in its correction. “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.”

U.S. Circuit Judges Susan Garber, a Bill Clinton appointee, and Michelle Friedland, a Barack Obama appointee, joined Marshall on the panel.

The case will now return to Judge Alsup’s court for reconsideration.

Apple previously argued that its security-screening policy did not restrict employees’ actions during searches and that workers could easily opt out by not bringing bags or iPhones to work.

In resolving the state law question in February, California Supreme Court Chief Justice Tani Cantil-Sakauye said Apple’s position smacked of “irony and inconsistency.” She found Apple’s claim that bringing an iPhone to work was unnecessary for its employees “directly at odds with its description of the iPhone as an ‘integrated and integral’ part of the lives of everyone else.”

The chief justice also found Apple wielded control over its workers by forcing them to find a manager or security guard before they could leave the store for lunch breaks or shift endings. Workers also had to unzip or open compartments in their bags, follow the commands of bag searchers to move things around in their bags and allow their Apple devices to be removed, inspected and verified during searches.

On remand, Judge Alsup must consider the state Supreme Court’s finding as he reevaluates both sides’ motions for summary judgment in the seven-year-old labor class action.

In November 2015, the plaintiff class included 12,000 current and former California Apple store employees.

Attorneys for Apple and the plaintiff class did not immediately reply to emails requesting comment Thursday.

Apple is represented by Julie Dunne of DLA Piper and Todd Boyer of Baker & McKenzie.

Kimberly Ann Kralowec of Kralowec Law and Lee Shalov of Mclaughlin & Stern represent the plaintiff class.

Follow @NicholasIovino
Categories / Business, Employment, Technology

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