LP Magazine

MAY-JUN 2018

LP magazine publishes articles for loss prevention, asset protection, and retail professionals covering shrinkage, investigations, shoplifting, internal theft, fraud, technology, best practices, and career development.

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Seidler is managing editor, digital. She manages the magazine's digital channels that includes multiple daily e-newsletters featuring original content and breaking news as well as pushing content to various social media platforms. Seidler recently earned her master's degree in technology and communications through the University of North Carolina's School of Media and Journalism. She can be reached at KelseyS@LPportal.com. Kelsey Seidler LPM DIGITAL The Exit Inspection, the Retreat of Toys"R"Us, and a Farewell to Sticky Myths F ollowing are a few article summaries that can provide you with a small taste of the original content available to you every day through our daily digital offerings, which are offered free through LossPreventionMedia.com. In addition to our daily newsletter, a comprehensive library of original content is available to our digital subscribers at no cost to you. Visit our website to gain access to all of our content. You can also follow us on Facebook (search LP Voices), Twitter (@LPMag), and LinkedIn. Security Footage Sinks Employee Lawsuit Targeting Bag Checks By Garett Seivold Nike has prevailed in a class-action lawsuit filed by hourly retail workers demanding that the company pay them for the time they spent waiting for loss prevention inspections after clocking out and before leaving stores. According to Seyfarth Shaw LLP, Nike's attorneys in Rodriguez v. Nike Retail Services, the court decision was influenced by the retailer's time and motion study that showed associates spent an average of 18.5 seconds in off-the-clock employee bag checks—and that 60.5 percent of all exits required zero wait time. US District Judge Beth Freeman said Nike store employee Isaac Rodriguez didn't submit evidence contradicting the Nike Retail Services study, which was based on 700 hours of security footage. That length of wait is too trivial and difficult to capture to require payment, the judge suggested. "Evaluating Nike's evidence under the de minimis defense, and recognizing that daily periods of up to ten minutes have been found to be de minimis, Judge Freeman ruled that the workers hadn't shown that their off-the-clock exit time was close to meeting that threshold," according to Nike's attorneys. "As the court found, brief exit inspections are a modern business reality that most retailers, like Nike, use for the legitimate reason of reducing theft," Nike spokesperson Greg Rossiter told Law360. Although Nike employees lost their claim, the California Supreme Court is reviewing the de minimis doctrine in a separate legal case against Starbucks. Troester v. Starbucks claims the company violated the California Labor Code by failing to pay an employee for the brief time he spent closing up the store after he clocked out at the conclusion of certain shifts. In granting Nike summary judgment, the judge said she was compelled to apply existing law to the case and would not "predict how the California Supreme Court will rule." "For the moment, this ruling is good news for employers who can put away their stop watches when small increments of off-the-clock time are irregular and difficult to record," according to Seyfarth Shaw. "But keep your eye on the ball because the California Supreme Court will be making the final call on the de minimis doctrine and whether or how it applies in the state." In a similar case, DICK'S Sporting Goods (DSG) has asked the Eastern District of California to stay a workers' suit while waiting on the California Supreme Court to rule on the Starbucks case and a related case against Apple. DICK'S workers countered that the court should not stay their class action, alleging that their claim is different than the two other wage suits before the state's highest court. In addition to claiming they should be paid for time spent in store security checks, which also involves visual inspections of workers and the physical inspection of personal belongings other than bags, DSG workers are asking to be reimbursed for clothing-related expenses (Greer et al. v. DICK'S Sporting Goods). Employees have raised the matter of unpaid time during security checks in several venues, with courts typically siding with employers. In 2015, for example, a California judge denied a plaintiff's request for class certification in a lawsuit accusing Nordstrom of failing to pay its workers for time spent waiting in line and undergoing bag checks during their work shifts. Although the loss prevention checks were alleged to be mandatory, the employee admitted in her deposition that employee bag checks could be avoided if employees refrained from bringing bags into the workplace. Employees have also lost cases involving longer wait times. For example, employees of a nuclear power station sued under the Fair Labor Standards Act (FLSA) for compensation for the ten to thirty minutes per day they spent passing through multiple layers of security, which included waiting in line for badge inspections, random vehicle checks, passing through continued on page 68 66 MAY–JUNE 2018 | LOSSPREVENTIONMEDIA.COM

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