What Is A Reasonable Request Of An Employee Not On The Clock?

In a recent article published in LPM Insider, “Security Footage Sinks Employee Lawsuit Targeting Employee Bag Checks” by Garrett Seivold, Feb 7, 2018, they discussed a lawsuit brought against Nike by an employee who complained that he was being required to have package checks done when he was off the clock. His argument was that he was not being compensated for the time he is delayed. For the time being Nike has not been found to be excessive in its demands. They were able to demonstrate that employees were only being stopped for an average of 18 seconds for an inspection. This is hardly excessive by any measure. However, courts have a tendency to be inconsistent or a higher court may overturn a lower court decision. While one court may uphold the decision in favor of Nike there is no guarantee this will be true should a similar lawsuit be brought against other retailers.

This case brings up some interesting questions for retailers. No one should ever work off the clock (unless of course the employee is classified as “exempt” in which case there is no time clock per se) but what constitutes reasonable requests? Can an employer “ask” employees to bring in a shopping cart from the parking lot if they are coming to work or returning from a break? It seems like an innocuous request. It helps the store keep the parking lot clear of hazards and saves the time of sending someone out to gather buggies and the employee is already on the way in. The problem in this situation is that the suggestion may not be perceived as a suggestion. The request is coming from a person in authority so there could be the sense that the request is a requirement and if it is not done, will the staff member get in trouble or be perceived as a non-team player? This type of request has been made of employees and does fall into a gray area. To prevent it from becoming a problem it is probably best to err on the side of caution and not do it.

Is it reasonable to ask a closing employee(s) to clock out and wait to exit the building with the closing manager who still has to set the alarm system for the store? Again, the process of setting the alarm may only take an extra minute but having been a closing manager I have had alarm panels that won’t set properly due to a faulty alarm sensor. Those take time to clear or shunt so the rest of the system can be set. How much time is reasonable? There may not be a clear answer.

Last but certainly not least what about delays due to electronic article surveillance alarm activations? Unlike a package check at the end of the shift in which a quick peek is all that is required to look for obvious unpaid merchandise, an electronic article surveillance alarm requires more attention. Something is in the possession of the person and that has to be resolved. This also means more time will be required for inspecting receipts and items the person has in their possession. Until the cause for the alarm is determined there is reasonable cause for a delay but should that employee be paid for the time? What if the cause for the alarm is due to faulty equipment that did not de-tune a Checkpoint tag? What if the cause is due to cashier error and the failure to remove a hard tag at the time of purchase? Would any of these factors shift a court decision in favor of an employee suing for the same reasons?

It appears for the time being that courts will allow reasonable time demands from employees for things that impact the security and safety of a store. What makes one requirement reasonable while another is not could become problematic. Conduct package checks and ask your closing employees to wait a minute to enable the group to leave together for safety reasons. Consider making the expectation clear and why you are doing it in a release form signed by the employee during the hiring process. If you still have concerns then manually adjust timecards to reflect the additional time. At least the employees will know they are being compensated for that 18-second bag check.