Amanda Frlekin v. Apple Inc. , 870 F.3d 867 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMANDA FRLEKIN; TAYLOR No. 15-17382
KALIN; AARON GREGOROFF;
SETH DOWLING; DEBRA D.C. Nos.
SPEICHER, on behalf of 3:13-cv-03451-WHA
themselves and all others 3:13-cv-03775-WHA
similarly situated, 3:13-cv-04727-WHA
Plaintiffs-Appellants,
v. ORDER
CERTIFYING A
APPLE, INC., a California QUESTION TO THE
corporation, SUPREME COURT
Defendant-Appellee. OF CALIFORNIA
Filed August 16, 2017
Before: Susan P. Graber and Michelle T. Friedland, Circuit
Judges, and Consuelo B. Marshall, * District Judge.
*
The Honorable Consuelo B. Marshall, United States District Judge
for the Central District of California, sitting by designation.
2 FRLEKIN V. APPLE
SUMMARY **
Certification of Question to Supreme Court of
California
The panel certified the following question of state law to
the Supreme Court of California:
Is time spent on the employer’s premises
waiting for, and undergoing, required exit
searches of packages or bags voluntarily
brought to work purely for personal
convenience by employees compensable as
“hours worked” within the meaning of
California Industrial Welfare Commission
Wage Order No. 7?
ORDER
We respectfully ask the Supreme Court of California to
exercise its discretion to decide the certified question set
forth in Part II of this Order. See Cal. R. Ct. 8.548. The
answer to this question of California law would be
dispositive of the appeal before us, and no clear controlling
California precedent exists. Id. Moreover, because the
question that we certify is of extreme importance to
numerous employees and employers in California,
considerations of comity and federalism suggest that the
court of last resort in California, rather than our court, should
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FRLEKIN V. APPLE 3
have the opportunity to answer the question in the first
instance. See Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192,
1196B97 (9th Cir. 2013) (order); Klein v. United States,
537 F.3d 1027, 1028 (9th Cir. 2008) (order).
I. Administrative Information
We provide the following information in accordance
with California Rule of Court 8.548(b)(1):
The caption for this case is:
AMANDA FRLEKIN, TAYLOR KALIN; AARON
GREGOROFF; SETH DOWLING; DEBRA
SPEICHER, on behalf of themselves and all others
similarly situated,
Plaintiffs-Appellants,
v.
APPLE, INC.,
Defendant-Appellee,
and the case number in our court is 15-17382.
The names and addresses of counsel are:
For Plaintiffs - Appellants Amanda Frlekin, et al.:
Kimberly A. Kralowec, Kathleen S. Rogers, and Chad A.
Saunders, The Kralowec Law Group, 44 Montgomery
Street, Suite 1210, San Francisco, California; Lee S. Shalov,
Brett R. Gallaway, and Wade C. Wilkinson, McLaughlin &
Stern LLP, 260 Madison Avenue, 18th Floor, New York,
New York; Peter R. Dion-Kindem, Peter R. Dion-Kindem,
P.C., 21550 Oxnard Street, Woodland Hills, California; and
4 FRLEKIN V. APPLE
Jeff Holmes, 3311 E. Pico Boulevard, Los Angeles,
California.
For Defendant - Appellee Apple, Inc.: Richard H. Rahm,
Littler Mendelson, P.C., 333 Bush Street, 34th Floor, San
Francisco, California; Julie A. Dunne, Littler Mendelson,
P.C., 501 W. Broadway, Suite 900, San Diego, California;
Todd K. Boyer, Littler Mendelson, P.C., 50 W. San
Fernando Street, 15th Floor, San Jose, California; Michael
G. Leggieri, Littler Mendelson, P.C., 1255 Treat Boulevard,
Suite 600, Walnut Creek, California, Theodore J. Boutrous,
Jr., Gibson, Dunn & Crutcher LLP, 333 South Grand
Avenue, Los Angeles, California; and Joshua L. Lipshutz,
Gibson, Dunn & Crutcher LLP, 555 Mission Street, San
Francisco, California.
For Amicus Curiae – California Employment Lawyers
Association: Michael D. Singer, Cohelan Khoury & Singer,
605 “C” Street, Suite 200, San Diego, California.
As required by Rule 8.548(b)(1), we designate Amanda
Frlekin, Taylor Kalin, Aaron Gregoroff, Seth Dowling, and
Debra Speicher as the petitioners, if our request for
certification is granted. They are the appellants before our
court.
II. Certified Question
We certify to the California Supreme Court the following
question of state law that is now before us:
Is time spent on the employer’s premises
waiting for, and undergoing, required exit
searches of packages or bags voluntarily
brought to work purely for personal
convenience by employees compensable as
FRLEKIN V. APPLE 5
“hours worked” within the meaning of
California Industrial Welfare Commission
Wage Order No. 7?
Our phrasing of the question should not restrict the
California Supreme Court’s consideration of the issues
involved; that court may reformulate the questions. Cal. R.
Ct. 8.548(f)(5).
We agree to accept and to follow the decision of the
California Supreme Court. Cal. R. Ct. 8.548(b)(2); see also
Klein, 537 F.3d at 1029 (holding, with respect to a certified
question, that the Ninth Circuit is bound by the California
Supreme Court’s interpretation of California law).
III. Statement of Facts
Amanda Frlekin, Taylor Kalin, Aaron Gregoroff, Seth
Dowling, and Debra Speicher (“Plaintiffs”) brought this
wage-and-hour class action on behalf of current and former
non-exempt employees who have worked in Defendant
Apple, Inc.’s retail stores in California since July 25, 2009.
Plaintiffs seek compensation for time spent waiting for and
undergoing exit searches pursuant to Defendant’s
“Employee Package and Bag Searches” policy (the
“Policy”), which states:
Employee Package and Bag Searches
All personal packages and bags must be
checked by a manager or security before
leaving the store.
6 FRLEKIN V. APPLE
General Overview
All employees, including managers and
Market Support employees, are subject to
personal package and bag searches. Personal
technology must be verified against your
Personal Technology Card (see section in this
document) during all bag searches.
Failure to comply with this policy may lead
to disciplinary action, up to and including
termination.
Do
• Find a manager or member of the security
team (where applicable) to search your
bags and packages before leaving the
store.
Do Not
• Do not leave the store prior to having
your personal package or back [sic]
searched by a member of management or
the security team (where applicable).
• Do not have personal packages shipped to
the store. In the event that a personal
package is in the store, for any reason, a
member of management or security
(where applicable) must search that
package prior to it leaving the store
premises.
FRLEKIN V. APPLE 7
Employees receive no compensation for the time spent
waiting for and undergoing exit searches, because they must
clock out before undergoing a search. Employees who fail
to comply with the Policy are subject to disciplinary action,
up to and including termination.
On July 16, 2015, the district court certified a class
defined as “all Apple California non-exempt employees who
were subject to the bag-search policy from July 25, 2009, to
the present.” Because of concerns that individual issues
regarding the different reasons why employees brought bags
to work, “ranging from personal convenience to necessity,”
would predominate in a class-wide adjudication, the district
court (with Plaintiffs’ consent) made clear in its certification
order that “bag searches” would “be adjudicated as
compensable or not based on the most common scenario,
that is, an employee who voluntarily brought a bag to work
purely for personal convenience.”
On November 7, 2015, the district court granted
Defendant’s motion for summary judgment and denied
Plaintiffs’ motion for summary judgment. The district court
ruled that time spent by class members waiting for and
undergoing exit searches pursuant to the Policy is not
compensable as “hours worked” under California law
because such time was neither “subject to the control” of the
employer nor time during which class members were
“suffered or permitted to work.” Plaintiffs timely appealed.
IV. Explanation of Certification
California law provides no clear answer to the certified
question. Employees who bring a bag or package to work
may not leave the premises before undergoing a search. An
employee must find a manager, wait for the manager to
search his or her belongings, and wait for the manager to
8 FRLEKIN V. APPLE
verify that any Apple products belong to the employee. That
time is not compensable under federal law. Integrity Staffing
Sols., Inc. v. Busk, 135 S. Ct. 513 (2014). But the California
Supreme Court has held that state law “provide[s] greater
protection to workers” than the federal scheme and that “the
federal statutory scheme, which differs substantially from
the state scheme, should be given no deference” when
interpreting California’s wage and hour laws. Morillion v.
Royal Packing Co., 995 P.2d 139, 147, 151 (Cal. 2000)
(internal quotation marks omitted).
California Industrial Welfare Commission Wage Order
No. 7 provides: “Every employer shall pay to each
employee . . . not less than the applicable minimum wage for
all hours worked in the payroll period . . . .” Cal. Code Regs.
tit. 8, § 11070(4)(B). The Wage Order further provides:
“‘Hours worked’ means the time during which an employee
is subject to the control of an employer, and includes all the
time the employee is suffered or permitted to work, whether
or not required to do so.” Id. § 11070(2)(G). The California
Supreme Court has held that the two parts of the definition—
“time during which an employee is subject to the control of
an employer” and “time the employee is suffered or
permitted to work, whether or not required to do so”—
independently define whether time spent is compensable as
“hours worked.” Morillion, 995 P.2d at 143–47. 1 Moreover,
“in light of the remedial nature of the legislative enactments
authorizing the regulation of wages, hours and working
conditions for the protection and benefit of employees, the
1
Morillion concerned a different Wage Order, but that difference is
immaterial because the definition of “hours worked” in Wage Order No.
7 is identical to the definition of “hours worked” that was at issue in
Morillion. See 995 P.2d at 142 (noting that 13 of California’s 15 Wage
Orders “contain the same definition of ‘hours worked’”).
FRLEKIN V. APPLE 9
statutory provisions are to be liberally construed with an eye
to promoting such protection.” Id. at 150 (internal quotation
marks omitted).
As Defendant concedes, employees who bring a bag or
package to work and therefore must follow the search
procedures are clearly under the “control” of the employer
while awaiting, and during, the search. Under threat of
sanctions and loss of employment, the employees may not
leave the premises until the search is conducted. Under a
strictly textual analysis, then, Plaintiffs are entitled to
compensation for the time spent undergoing the search
because they are “subject to the control of an employer.”
Cal. Code Regs., tit. 8, § 11070(2)(G).
Defendant nevertheless contends that “control” during
the search is insufficient to constitute “hours worked.”
According to Defendant, the search also must be “required.”
Because the employees may avoid a search by declining to
bring a bag or package to work, the search is not “required.”
Thus, Defendant contends, Plaintiffs’ claim necessarily fails.
Defendant’s argument finds strong support in the
California Supreme Court’s decision in Morillion. Morillion
addressed “whether an employer that requires its employees
to travel to a work site on its buses must compensate the
employees for their time spent traveling on those buses.”
995 P.2d at 140. The court held that the employee-plaintiffs
were entitled to compensation from the employer, Royal
Packing Company (“Royal”). Id. at 152. The court
reasoned:
[P]laintiffs’ compulsory travel time, which
includes the time they spent waiting for
Royal’s buses to begin transporting them,
was compensable. Royal required plaintiffs
10 FRLEKIN V. APPLE
to meet at the departure points at a certain
time to ride its buses to work, and it
prohibited them from using their own cars,
subjecting them to verbal warnings and lost
wages if they did so. By directing and
commanding plaintiffs to travel between the
designated departure points and the fields on
its buses, Royal controlled them within the
meaning of "hours worked" under
subdivision 2(G).
Id. at 147 (internal quotation marks and brackets omitted).
Morillion made clear that the mandatory nature of the
bus ride was a dispositive fact and that, had the bus ride not
been mandatory, the time would not have been compensable.
For example, Morillion summarized its holding as follows:
As we have emphasized throughout, Royal
required plaintiffs to ride its buses to get to
and from the fields, subjecting them to its
control for purposes of the “hours worked”
definition. However, employers may provide
optional free transportation to employees
without having to pay them for their travel
time, as long as employers do not require
employees to use this transportation.
Id. at 152; see also id. at 148 n.5 (distinguishing Vega v.
Gasper, 36 F.3d 417 (5th Cir. 1994), by holding that “the
fact that the Vega employees were free to choose—rather
than required—to ride their employer’s buses to and from
work” was “a dispositive, distinguishing fact”). The
California Court of Appeal has applied that principle:
FRLEKIN V. APPLE 11
In [Morillion], the California Supreme
Court held that employees must be
compensated for travel time when their
employer requires them to travel to a work
site on employer-provided buses. . . . As it is
undisputed that Disney employees were not
required to drive to work and take the shuttle,
we conclude this case falls outside the
mandate of Morillion.
Overton v. Walt Disney Co., 38 Cal. Rptr. 3d 693, 694 (Ct.
App. 2006); see also id. at 699 (holding that “the key factor
is whether Disney required its employees who were assigned
parking in the [remote] lot to park there and take the shuttle”
rather than reaching the park entrance by other means of
their choosing).
Applying Morillion, the searches here are voluntary in
the antecedent sense that employees may choose not to bring
a bag or package to work. Accordingly, the time spent
undergoing the search is not compensable.
But we are uncertain whether Morillion applies in that
straightforward manner. First, unlike Morillion, Overton,
and other cases, this case does not involve a question about
time spent traveling to a work site. Instead, this case
involves an on-site search during which the employee must
remain on the employer’s premises. That difference may
matter.
Much of Morillion’s analysis of the relevant legal
sources concerned travel time specifically. In the context of
travel to a work site, an employer’s interest typically is
limited to the employee’s timely arrival. It is irrelevant to
the employer how an employee arrives, so long as the
employee arrives on time. So it makes little sense to require
12 FRLEKIN V. APPLE
the employer to pay for travel time unless, as discussed at
length in Morillion, the employer requires the employee to
use the employer-provided transportation. For voluntary bus
rides, the employer is not exercising “control” over the
employee.
That analysis may not apply in the same manner to on-
site searches because both the level of control and the
employer’s business interest are greater. Once an employee
has crossed the threshold of a work site where valuable
goods are stored, an employer’s significant interest in
preventing theft arises. The employer’s exercise of control
over the bag-toting employee—albeit at the employee’s
option of bringing a bag—advances the employer’s interest
in loss prevention. For that reason, the mandatory/voluntary
distinction applied in Morillion may make less sense here.
Although the search is voluntary in that the employee could
have avoided it by leaving his or her belongings at home, the
employer nevertheless exercises control over the employee
who does bring a bag or package to work. It is unclear under
Morillion whether, in the context of on-site time during
which an employee’s actions and movements are compelled,
the antecedent choice of the employee obviates the
compensation requirement.
Even if Morillion’s rule applies equally to on-site
searches, we are uncertain whether Plaintiffs’ claim
necessarily fails. Whether an activity is “required” is a
flexible concept. At one end of the spectrum are highly
discretionary actions. For example, in the absence of truly
exceptional circumstances, no one would seriously dispute
the voluntariness of a search policy that applied only to
steamer trunks that an employee brings to work. At the other
end of the spectrum are actions that are, practically speaking,
required, even though they are nominally voluntary. For
FRLEKIN V. APPLE 13
example, a search policy in a cold climate that applied to all
jackets would be effectively unavoidable, even if a person
theoretically could commute to work without a jacket.
Although we are not aware of a California appellate
decision on point, federal courts have recognized this
spectrum. In Alcantar v. Hobart Service, 800 F.3d 1047,
1055 (9th Cir. 2015), for example, we held that only
“genuine” choices—and not “illusory” choices—avoid
compensation liability under California’s Wage Orders. We
held that the plaintiff could prevail at trial by proving that
“employees are, as a practical matter, required to commute
in [the defendant’s] vehicles.” Id. at 1054–55. Similarly, in
Greer v. Dick’s Sporting Goods, Inc., No. 2:15-cv-01063-
KJM-CKD, 2017 WL 1354568, at *8 (E.D. Cal. Apr. 13,
2017) (order), a federal district court granted class
certification in a case involving a search policy that
“pertained to ‘jacket[s], bags, and other personal
belonging[s],’ and therefore applied to a greater proportion,
if not the entire, putative class.” (First alteration added.)
The policy at issue here falls somewhere between the
two ends of the spectrum. The case at issue involves only
those employees who voluntarily brought bags to work
purely for personal convenience. It is thus certainly feasible
for a person to avoid the search by leaving bags at home.
But, as a practical matter, many persons routinely carry bags,
purses, and satchels to work, for all sorts of reasons.
Although not “required” in a strict, formal sense, many
employees may feel that they have little true choice when it
comes to the search policy, especially given that the policy
applies day in and day out. Because we have little guidance
on determining where to draw the line between purely
voluntary actions and strictly mandatory actions, we are
uncertain on which side of the line Plaintiffs’ claim falls.
14 FRLEKIN V. APPLE
The consequences of any interpretation of the Wage
Order will have significant legal, economic, and practical
consequences for employers and employees throughout the
state of California, and it will govern the outcome of many
disputes in both state and federal courts in the Ninth Circuit.
Many cases, in addition to this case, have raised the issue of
the applicability of California Wage Orders to a variety of
employment security checks. See, e.g., Greer, 2017 WL
1354568; Roberts v. Marshalls of CA, LLC, No. 13-cv-
04731-MEJ, 2017 WL 1152967 (N.D. Cal. Mar. 28, 2017)
(order); Scott-George v. PVH Corp., No. 2:13-cv-0441-
TLN-AC, 2016 WL 3959999 (E.D. Cal. July 22, 2016)
(order); Moore v. Ulta Salon, Cosmetics & Fragrance, Inc.,
311 F.R.D. 590 (C.D. Cal. 2015) (order); Ogiamien v.
Nordstrom, Inc., No. 2:13-cv-05639-ODW-JCG, 2015 WL
773939 (C.D. Cal. Feb. 24, 2015) (order); Quinlan v. Macy’s
Corp. Servs., Inc., No. 12-00737-DDP, 2013 U.S. Dist.
LEXIS 164724 (C.D. Cal. Aug. 22, 2013) (order); Otsuka v.
Polo Ralph Lauren Corp., No. C 07-02780 SI, 2010 WL
366653 (N.D. Cal. Jan. 25, 2010) (order); Cervantez v.
Celestica Corp., 618 F. Supp. 2d 1208 (C.D. Cal. 2009)
(order); Bibo v. Fed. Express, Inc., No. C 07-2505 TEH,
2009 WL 1068880 (N.D. Cal. Apr. 21, 2009) (order);
Kurihara v. Best Buy Co., No. C 06-01884 MHP, 2007 WL
2501698 (N.D. Cal. Aug. 30, 2007) (order).
We therefore submit that this question is worthy of
decision by the California Supreme Court. Because the
outcome of this case depends on the answer, we also submit
that this case presents a suitable vehicle for the California
Supreme Court to address the question. Cal. R. Ct. 8.548(a).
V. Accompanying Materials
The clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
FRLEKIN V. APPLE 15
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of the record, and an original and
ten copies of this order and request for certification, along
with a certification of service on the parties, pursuant to
California Rule of Court 8.548(c), (d).
This case is withdrawn from submission, and the clerk is
directed to administratively close this docket, pending
further order from this court. The parties shall notify the
clerk of this court within seven days after the California
Supreme Court accepts or rejects certification. If an opinion
is rendered by that court, the parties shall again notify the
clerk of this court within seven days of the issuance of the
opinion. The panel retains jurisdiction over further
proceedings.
IT IS SO ORDERED.