Time Study Kills Off-The-Clock Claim

In many cases, particularly in light of last year's decision in Tyson Foods, Inc. v. Bouaphakeo, it is the plaintiff who tries to use statistical evidence in an off-the-clock case to estimate damages (we blogged the Tyson Foods decision here. But that same data may not only be used by the employer but also can actually defeat a case altogether, as a recent decision from the Northern District of California illustrates.

In Rodriguez v. Nike Retail Services, Inc., Case No. 14-cv-01508-BLF (N.D. Cal. Sept. 12, 2017), the plaintiffs were hourly employees working at California Nike retail shoe stores. At the end of each working day, they were required to go through bag checks intended to reduce internal theft. These searches were generally conducted after the employees punched out as they exited the store. The plaintiffs brought suit on the basis that they were not paid for the time spent either waiting for the searches or having their bags searched.