California District Court Nixes Security Check “Wait Time” Class Action
By Cary Burke
Earlier this week, the U.S. District Court for the Northern District of California granted Nike’s motion for summary judgment and dismissed a class action alleging unpaid wages brought by workers who complained they were not paid for time going through “security checks.” Specifically, the Court determined in Rodriguez v. Nike Retail Services, Inc. that the time they were forced to wait in security checks to have their bags or jackets inspected prior to exiting the store was de minimis and non-compensable.
Rodriguez set forth evidence (primarily deposition testimony from store managers) that security checks could take up to “a few minutes at a time.” In contrast, Nike produced a study of more than 700 hours of security footage, which explained that the vast majority of employees who exited the store spent approximately 18 seconds waiting for their bags or jackets to be searched when exiting.
When opposing Nike’s summary judgment motion, Rodriguez argued the de minimis doctrine was inapplicable to his claims brought pursuant to the California Labor Code (CLC). However, the Court quickly disposed of this argument, ruling the de minimis doctrine applies to the class claims. Despite the California Supreme Court’s silence on the issue, California courts of appeal and the Ninth Circuit Court of Appeals both previously (and regularly) applied the de minimis doctrine to CLC wage claims.
Rodriguez also sought to exclude Nike’s expert report. To do so, Rodriguez hired an expert witness to attack the methods by which Nike’s study was produced, as well as its findings. Yet Rodriguez’s expert did not supply any evidence that would contravene Nike’s study, and the Court held the lack of contrary evidence did not create a “battle of experts” or a fact issue that would allow Rodriguez to survive summary judgment.
Finally, the Court turned to the evidence before it, and determined that any wait time upon exiting was in fact de minimis. The Court specifically addressed the deposition testimony of store managers, some of whom testified employees could wait up to a few minutes for security checks prior to exiting. But Nike’s study showed such wait times of a few minutes were irregular, and the average wait time was less than twenty seconds. As a result, the aggregate amount of “compensable time” spent waiting in security checks was small. Moreover, given the administrative difficulty in recording between 20 seconds and two minutes of total wait time in security checks, the Court held the de minimis doctrine applied and granted summary judgment to Nike.
This decision confirms the continuing viability of the de minimis doctrine and provides employers another arrow in their quiver when defending against similar “wait time” claims. Even so, employers in retail settings would do well to monitor employee wait times should such employers make use of “security checks” to ensure any wait time is under a minute. To the extent such wait times last longer than one to two minutes on average, employers may wish to consider setting up a mechanism to track such time.