Employers Cannot Rely on the De Minimis Doctrine to Avoid Paying Small Amounts of Regularly Occurring Off-the-Clock Work

By Emma Luevano

The de minimis doctrine, which states that the law does not concern itself with “trifles,” has been applied by federal courts to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.  On Thursday, July 26, 2018, the California Supreme Court ruled that this doctrine does not apply when the otherwise compensable time occurs regularly.  According to the Supreme Court, the advent of modern technology in recording time makes reliance on the de minimis rule nearly unnecessary.  The Supreme Court, however, left for another day whether the de minimis doctrine can excuse an employer from paying for compensable time which does not occur regularly.

In Troester v. Starbucks Corp., a Starbucks employee claimed that, after clocking out, he was required to perform tasks such as transmitting sales data, setting alarms, and sometimes bringing in patio furniture or walking coworkers to their cars, which took an additional 4 to 10 minutes of time per day.  A federal judge dismissed the case, finding that it would be impractical to require Starbucks to record the brief amounts of time employees spent doing work tasks before leaving their stores.  The plaintiff appealed, and the Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether the de minimis rule applies to claims for unpaid wages brought under California Labor Code Sections 510 (providing for overtime pay), 1194 (setting forth a private right of action for minimum wage and overtime violations), and 1197 (providing for minimum wage).  In Thursday’s ruling, the Supreme Court addressed the question in two parts. 

First, the Supreme Court analyzed whether California’s wage and hour statutes or regulations have adopted the de minimis doctrine found in the federal Fair Labor Standards Act’s (“FLSA”).  After surveying California’s Labor Code statutes and Industrial Welfare Commission (IWC) wage orders, the Court ruled that “[t]here is no indication in the text or history of the relevant statutes and [IWC] wage orders of such adoption.”

Second, because the de minimis rule is a long-standing state law principle, the Court looked at whether some version of the doctrine nonetheless applies to wage and hour claims as a matter of state law.  The Court declined to decide whether there are any circumstances “where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.”  Instead, it looked only at the facts of the case, holding that the de minimis rule did not apply where the employer regularly required the employee to work “off the clock” several minutes per shift.

In light of the Supreme Court’s decision in Troester, California employers should review their time-keeping practices to ensure that employees are not consistently performing any work before clocking in or after they clock out for the day.  To the extent necessary, employers should re-structure employees’ tasks so that all work is recorded and paid.  If employees regularly perform off-the-clock work, they should be paid for that time (even if it is just a few minutes per day).

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