In the recent case Cadena v. Customer Connexx LLC, the United States Court of Appeals for the Ninth Circuit affirmed the applicability of the Fair Labor Standards Act’s (FLSA) “de minimis” doctrine. Under the FLSA, employers are not required to pay wages for ‘de minimis’ work performed before or after scheduled work hours.  

The three factors used by the Court to determine whether work time is de minimis are as follows:  

1. The regularity of the additional work;  
2. The aggregate amount of compensable time; and  
3. The practical administrative difficulty of recording the additional time. 

In Cadena, the employer required call center employees to boot up and boot down computers at the beginning and end of each shift.   Employees were required to find a working computer, log in, and open the program to clock in and begin recording their time.  According to court records, the employer’s equipment was “old and slow” and because employees were not assigned workstations, they sometimes had to spend time searching for available workstations with working computers. Employees were prohibited from clocking in 7 or more minutes before their scheduled start time. According to employees, it could take anywhere from a few seconds to thirty minutes per shift to get signed in before and logged off after their shifts.  

The district court below entered summary judgment in favor of the employer. However, the Court of Appeals found there were genuine disputes of fact as to whether the three de minimis factors applied, and therefore summary judgment to Customer Connexx was improper. 

What Does it Mean? 

California courts, and the Ninth Circuit, have traditionally been reluctant to provide any brightline rules when it comes to determining when pre/post work activities qualify as de minimis. And, given the somewhat subjective nature of the analysis, they tend to rule on the side of finding no amount of unpaid time to be truly de minimis. As a result, employers should err on the side of caution when auditing pre/post work activities and take appropriate actions to ensure compliance, particularly in California where state courts have incrementally eroded application of the de minimis doctrine. 

Here are four key best practices for ensuring that pre/post work activities are accurately captured: 

1. Implement clear policies and training. Establish and document clear policies and procedures regarding the requirement to clock in/out for all work-related activities. Conduct regular training sessions to educate employees about your policies and procedures and the importance of accurate timekeeping.  
2. Use Reliable Timekeeping Systems: Invest in timekeeping systems that can accurately track employee work hours, including any work performed before or after scheduled shifts. Consider electronic or biometric time clocks to reduce the risk of inaccuracies associated with manual timekeeping.  
3. Regular Audits and Monitoring. Conduct regular audits of time records to identify discrepancies or patterns that suggest unrecorded time. Monitor timekeeping reports closely and compare them with work schedules and actual workload requirements to ensure all hours worked are properly recorded.  
4. Encourage reporting and provide reporting procedures. Create an open and supportive environment where employees feel comfortable reporting issues. Establish clear processes for employees to report their concerns and ensure all reports are timely investigated and resolved.