Mike Kun, Kevin Sullivan Cited in “Nike, Converse Test California’s Pay Rule for Off-the-Clock Work”

Bloomberg BNA Daily Labor Report

Michael S. Kun, Member of the Firm, and Kevin Sullivan, Associate, in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, were cited in the Bloomberg BNA Daily Labor Report, in “Nike, Converse Test California’s Pay Rule for Off-the-Clock Work,” by Erin Mulvaney. (Read the full version – subscription required.)

Following is an excerpt:

Converse and Nike will argue separate cases before a federal appeals court over whether workers should be paid for time spent in post-shift security checks of their bags, even if it means just seconds or minutes.

The cases, which will be argued June 14, provide the first appeals court test of the scope of a California Supreme Court ruling that found Starbucks had to pay hourly workers for all work time, no matter how administratively difficult it might be to track. That decision prompted challenges to practices at retail stores in California. …

Starbucks Tested

These cases come in the wake of a July 2018 California Supreme Court decision in Troester v. Starbucks Corp., which found that the California Labor Code doesn’t align with the Fair Labor Standards Act when considering off-the-clock work that means only seconds or minutes of unpaid work.

The U.S. Supreme Court has held that it doesn’t require employers to pay for certain kinds of small, or “de minimis,” periods of time. California law requires businesses to account and pay for such work, the Starbucks ruling found.

Many employers have implemented the kind of bag check policies at issue in the Nike and Converse cases, in which employees are screened before leaving work to prevent theft, Michael Kun and Kevin Sullivan, attorneys with Epstein Becker Green, wrote in a client advisory. They wrote that these policies are often used by employers in retail stores.

Related reading:

Wage and Hour Defense Blog, “Nike Prevails in California Bag Check Case,” by Michael S. Kun and Kevin Sullivan.