Apple Retail Workers Win Class Certification In Bag-Check Suit

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Law360, New York (July 16, 2015, 7:54 PM ET) — A California federal judge granted class certification Thursday to a group of Apple Inc. retail workers who claim the technology giant stiffed them on pay for the time they spent complying with a company policy that their bags be checked before they walk out of the workplace.

U.S. District Judge William Alsup determined that with more than 12,400 current and former employees and the assertion that they all suffered unpaid wages because of Apple’s bag-search policy, the numerosity and typicality requirements are met.

After exploring whether a common issue of all employees who brought bags to the store could predominate over individual reasons that the workers may have brought the bags — for health reasons, because Apple required them to take work home or simply for the convenience of carrying personal belongings — Judge Alsup determined he would certify a class of all employees since July 25, 2009, and litigate the generic policy classwide.

He instructed that the class notice invite employees who wish to also litigate special needs for a bag at work to either intervene or opt out.

“These will likely be few anyway,” Judge Alsup wrote. “We should not let the few exceptions prevent litigation of the general rule.”

While individual class members may intervene to litigate special needs, Judge Alsup said he would not allow intervenors or named plaintiffs to seek to represent a subclass of employees with the same alleged special need, as it would require new notice and would be “too unmanageable.”

The plaintiffs contend that because any employee who brought a bag had to undergo an exit search and thus remained under Apple’s control as defined by California’s labor laws, they should be compensated for the time. Apple counters that because employees could choose not to bring a bag in the first place, they were not under its control.

Apple argued that a class could not be certified in the case because different stores implement the bag check policy differently and not all employees bring bags to work.

The plaintiffs first urged Judge Alsup to certify a nationwide class in February 2014, but he postponed his ruling, saying it was possible that “plaintiffs artfully worded their pleadings to hide serious defects in their proposed FLSA collective action.”

Apple then sought summary judgment, arguing the time spent undergoing bag and gadget checks isn’t compensable because employees aren’t required to bring purses, backpacks and electronic devices to work, but the judge turned the motion down.

Judge Alsup appointed McLaughlin & Stern LLP and the Kralowec Law Group as class counsel, with Lee S. Shalov of McLaughlin & Stern as lead counsel.

“We’re pleased with the judge’s decision,” Shalov told Law360 on Thursday.

Counsel for Apple could not be reached Thursday for comment.

The plaintiffs are represented by Lee S. Shalov and Brett Gallaway of McLaughlin & Stern LLP and Kimberly A. Kralowec, Kathleen Styles Rogers and Chad A. Saunders of the Kralowec Law Group.

Apple is represented by Julie A. Dunne, Todd K. Boyer and Michael G. Leggieri of Littler Mendelson PC.

The case is Frlekin et al. v. Apple Inc., case number 3:13-cv-03451, in the U.S. District Court for the Northern District of California.

–Additional reporting by Beth Winegarner.  Editing by Brian Baresch.


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