Nike Inc. must still face a class action of current and former retail employees in California over whether the company should pay them for time spent off the clock submitting to bag checks.
The Ninth Circuit appeals court on Friday revived the lawsuit against Nike Retail Services Inc., after a lower federal court in California ruled in 2017 that the time it took to do the checks wasn’t long enough on a regular basis to potentially be compensated.
The appeals court disagreed with the lower court, saying there was some evidence that most of the inspections took long enough, and that there is a legitimate dispute about whether this could be paid time. Nike and the employees in the suit have clashed about how long these checks actually take.
“We cannot conclude that exit inspections qualify as ‘split-second absurdities,’” the Ninth Circuit wrote in its opinion Friday. “Nor do they appear so ‘irregular that it is unreasonable to expect the time to be recorded.’”
The case involves the practice at nearly three dozen Nike stores in California, where hourly employees have to undergo bag, or box, or visual checks, which retailers have said they do as a precaution against theft. The employees have to go through these checks when they leave the store during breaks and after their shifts, according to court documents.
Nike had trotted out an expert who studied inspection times in the case and said they took fewer than about 20 seconds each time. The plaintiffs’ expert disagreed with that assessment, saying it relied on too small a sample size and that it appeared to discount the time that employees spent waiting to go through the checks. Even Nike store managers had said in depositions these exit inspections often lasted several minutes, the plaintiffs pointed out.
“We are pleased with the Ninth Circuit’s ruling, and will continue to prosecute the case in accordance with California law,” said Max Gavron, an attorney for the employees, said in a statement Monday.
A representative for Nike couldn’t immediately be reached for comment Monday.
The suit had been filed in 2014 by plaintiff Isaac Rodriguez, a former employee in one of Nike’s retail stores in California. About two years later, a federal court certified a class of current and former hourly Nike retail employees in California since February 2010, according to court filings.
In its ruling on Friday, the Ninth Circuit cited the California Supreme Court’s input last year in a somewhat similar case involving Starbucks, which involved the work its employees had to do after clocking out to close up the stores.
In that case, the state’s supreme court pointed out that California’s labor laws offer more protections for employees than federal law does. In some cases, federal laws may allow employers to ask employees to work up to 10 minutes a day without pay, according to court documents.