California Supreme Court agreed to hear certified question about employer exit searches in Frlekin v. Apple

The California Supreme Court has agreed to weigh in on the issue of whether time spent on security searches is compensable.  Here is the Court's description of the issue:

Frlekin v. Apple, Inc., S243805. (9th Cir. No. 15-17382; ___ F.3d ___, 2017 WL 3723235; Northern District of California; Nos. C 13-03451 WHA, No. C 13-03775 WHA, C 13-04727 WHA.) Request under California Rules of Court rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The question presented is: “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?”

Justice Chin was recused and did not participate in the decision.  Between this and other issues currently before the California Supreme Court, we will see more changes in wage and hour litigation in the next few years.

Source: http://www.courts.ca.gov/documents/ws09181...

Briefs on the merits are available in Troester v. Starbucks

Briefing on the merits is complete in Troester v. Starbucks Corporation (S234969).  The California Supreme Court granted the Ninth Circuit's request to decide an issue of California law.  The issue, taken from the California Supreme Court's Case Summary page is:

Request under California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The question presented is: Does the federal Fair Labor Standard Act's de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?

If you are interested, I've made the Briefs available here.  A new sidebar link will also get you there.

Morris v. Ernst & Young, LLP update

For those of you who recognized that the Ninth Circuit got it 100% right when it found in Morris v. Ernst & Young, LLP (9th Cir. Aug. 22, 2016) that an arbitration agreement that precludes collective actions violates rights protected by the NLRA, you may wish to know where things stand with that case on further appeal.  Right now, Morris is before the U.S. Supreme Court on a Petition for Writ of Certiorari.  Here is the Docket report:

  • Sep 8 2016:  Petition for a writ of certiorari filed. (Response due October 11, 2016)
  • Sep 21 2016:  Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners.
  • Sep 29 2016:  Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents
  • Oct 3 2016: Brief amici curiae of National Association of Manufacturers, et al. filed. VIDED.
  • Oct 3 2016: Brief amicus curiae of Chamber of Commerce of the United States filed.
  • Oct 6 2016: Order extending time to file response to petition to and including November 14, 2016.
  • Oct 7 2016: Brief amicus curiae of International Association of Defense Counsel filed.
  • Oct 10 2016: Brief amicus curiae of Atlantic Legal Foundation filed.
  • Oct 11 2016: Brief amicus curiae of The Employers Group filed.
  • Oct 11 2016: Brief amicus curiae of The Retail Litigation Center, Inc. filed.
  • Oct 11 2016: Brief amicus curiae of The Business Roundtable filed.
  • Oct 11 2016: Brief amicus curiae of New England Legal Foundation filed.
  • Nov 15 2016: Order further extending time to file response to petition to and including November 21, 2016.
  • Nov 21 2016: Brief of respondents Stephen Morris, et al. in opposition filed.

Just look at those busy amicus filers.  I bet all those employers are telling the Supreme Court that the world would end in fire and death if they couldn't block class actions for wage and hour violations with arbitration agreements that employees have to sign to work.