By Christine Samsel and Sherli Frank
The “de minimis” doctrine comes from the Latin maxim de minimis non curat lex, which means “the law does not concern itself with trifles.” The maxim suggests that technicalities must yield to practical common sense and justice so as to avoid expensive litigation.
For the past 70 years, federal courts have applied the de minimis doctrine to excuse the payment of wages to non-exempt employees for small amounts of compensable time if the time was shown to be administratively difficult to record. These federal courts have found periods of up to 15 minutes per day to be de minimis, even though the time would otherwise have been compensable.
As highlighted in a recent California Supreme Court case, however, California law does concern itself with trifles. In the landmark decision Troester v. Starbucks Corp., the California Supreme Court concluded that non-exempt employees must be compensated for off-the-clock work that is required on a regular basis or as a regular component of a job. This includes small increments of time, such as the 4 to 10 minutes per shift claimed by plaintiff Troestar.
Specifically, Troester claimed that during each closing shift, he was required to clock out before initiating the company’s software “close store procedure” on a computer terminal. Thereafter, he would activate the alarm, exit the store and lock the front door. As the court saw it, Troester’s off-the-clock work was a regular feature of his job that was capable of being recorded for payroll purposes. More than that, the court held that the de minimis doctrine couldn’t shield Starbucks from liability for unpaid wages, at least not in California state courts.
In reaching its conclusion, the court reasoned that California’s wage and hour laws did not adopt the de minimis doctrine found in their federal counterpart, the Fair Labor Standards Act (FLSA). The court noted that California law is more protective of employee rights than federal law, and requires non-exempt employees to be paid for all hours worked. “The federal rule permitting employers under some circumstances to require employees to work as much as 10 minutes a day without compensation is less protective than [California’s] rule that an employee must be paid for ‘all hours worked.’”
The court left open the possibility that certain tasks and circumstances may be so minute or irregular that it is unreasonable to expect the time to be recorded, the key words being “minute” and “irregular.” Neither word will provide much comfort to employers.
The court already indicated that the term “minute” is subject to changes in technology: “advances in technology and changes in behavioral norms are constantly shaping our understanding of what fractions of time can be reliably measured, and what counts as too trifling a moment to measure in the wage and hour context.” In other words, what may be considered too small an increment of time today may be deemed as reasonably captured—and therefore compensable—time tomorrow.
The court’s majority opinion provides no assistance in understanding the scope or limitation of “irregular” off-the-clock work. However, Justice Kruger’s concurring opinion does give three examples of minute and irregular off-the-clock work: (1) on rare and unpredictable occasions, a software glitch delays employees from logging in on their computer to start their shift; (2) on occasion, employees receive schedule changes by email or text message during their off hours and are expected to read the message; and (3) a retail employee is sometimes asked questions by customers when he or she is off duty, and the employee spends a minute or two helping the customer. However, unless the circumstance faced by an employer is the same as one of these examples, the employer is at risk that the off-the-clock activity is compensable.
The takeaway here is that regular off-the-clock work requirements, even if they involve a very short period of time, have to be paid. This would include such things as locking doors, setting alarms, putting away tools, dropping cash into a deposit box, accompanying coworkers to their vehicles, and the like. The holding shouldn’t come as a surprise. The Starbucks decision fits within the broad obligation of California employers to compensate employees for all time the employee is “subject to the control” of the employer.
In past years, and especially in the agricultural setting, California employers have had to adapt their practices to account for those minutes when employees are ostensibly under their control, including time spent putting on and taking off required protective gear, and time spent walking from the worksite to break areas. At issue in several recently filed lawsuits is whether the time spent on employer-provided buses that transport employees to worksites is compensable. California employers have been on the forefront of developing mechanisms to ensure that non-exempt employees get paid for all compensable time, including utilizing advanced timekeeping systems and restructuring job duties to ensure that work is performed while employees are clocked in. Employers would be well-advised to review non-exempt employees’ job duties to determine whether any are performed prior to or after clocking in, and ensure either that such time is compensated and/or that duties are modified so the work is performed on the clock or by exempt employees. The silver lining is that many of the steps already taken by California employers in addressing these issues will leave them well-armed in the post-Starbucks employment landscape.
Christine Samsel (partner) and Sherli Frank (associate) are attorneys with Brownstein Hyatt Farber Schreck. Their expertise includes advising and counseling employers on employment practices and representing them in disputes.