September 20, 2017

Supreme Court will answer wage-and-hour question for Ninth Circuit

The Ninth Circuit has quite a nice streak going.  The Supreme Court today agreed to answer another question of California law for the federal appeals court, which is the 20th affirmative response in the last 21 Ninth Circuit requests.  And even the one denial during that time wasn’t really a denial.  There hasn’t been a flat “no” since March 2012.  The Ninth Circuit’s ability to convince the Supreme Court to hear cases will make any practitioner envious.

The latest “yes” comes in Frlekin v. Apple Inc., where the Ninth Circuit asked for help with this question:  “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order No. 7?”  (In granting the request, the Supreme Court says it’s rephrasing the question, which it can do, but, except for a typo, the issue on the court’s docket looks identical to that stated in the Ninth Circuit’s order.)  Justice Ming Chin was recused from voting on the request, and presumably won’t participate in deciding the case on the merits, either.

This was a fast “yes,” too.  It took the Supreme Court only 34 days to grant the Frlekin request.  That’s not unprecedented speed (see here, here, and here), but it normally takes nearly twice as long from docketing to grant.

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