Last week, we discussed the decision of the Northern District of California in Rodriguez v. Nike Retail Services, Inc., Case No. 14-cv-01508-BLF (N.D. Cal. Sept. 12, 2017), in which the employer's use of a time study resulted in summary judgment being granted against the entire class in an off-the-clock case involving post-shift bag searches. That court has now issued a similar decision, Chavez v. Converse, Inc., Case No. 15-cv-03746 NC (N.D. Cal., Oct. 11, 2017), involving a different shoe retailer.
Like the Rodriguez case, this one involved a shoe store that required employees departing at the end of their shifts to submit to bag searches designed to deter employee theft. As with the Rodriguez case, the court initially certified the class, but was later presented with time study data that reflected that the average bag search was completed in well under a minute. In this instance, the court further discounted anecdotal evidence of searches taking upward of 18 minutes in one case, finding that it could not overcome the fact that the "overwhelming majority" of inspections took so little time. The court granted summary judgment for the employer under the de minimis doctrine.
Like Rodriguez, this decision, from a court generally viewed as leaning for plaintiffs, underscores the utility of the use of a time study by the employer both to reduce damages and to challenge liability entirely. Thus, employers can turn what has often been viewed as a tool for the plaintiffs into one for themselves.
The Bottom Line:
Another case has found that an employer can use a time study to avoid liability altogether for off-the-clock work.
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