Until now, it was well-settled that California employers were not obligated to pay employees for small increments of off-the-clock time spent preparing for or ending a shift provided such time amounted to approximately 10 minutes or less of work. On August 17, 2016, at the request of the Ninth Circuit Court of Appeals, the California Supreme Court agreed to review Troester v. Starbucks, a case involving the issue of whether de minimis work time must be compensated under California law.
The plaintiff was a former employee of Starbucks who sued in federal court in California because he was not paid for certain off-the clock activities related to closing the store. The plaintiff asserted that the store closing procedure typically lasted "one minute to two minutes" before he activated the alarm. After activating the alarm, the plaintiff exited and locked the front door of the store. The store's alarm system required that the employees leave the store within one minute of setting the alarm. In compliance with Starbucks' safety guidelines, the plaintiff would walk his co-workers to their cars and stay outside the store with a co-worker who was waiting for a ride. Additionally, the plaintiff would occasionally have to bring the store's patio furniture inside after clocking out and exiting the store, or he would have to reopen the store after clocking out and leaving if another employee forgot a personal belonging inside the store. It is undisputed that these activities took a minute or two and effectively had to be performed after the plaintiff clocked out using the store’s timekeeping software.
Based on this alleged uncompensated time worked, Plaintiff Troester brought a putative class action lawsuit against Starbucks for unpaid wages under California law. The plaintiff asserted claims for (1) failure to pay minimum and overtime wages; (2) failure to provide accurate written wage statements; (3) failure to pay all final wages; and (4) unfair business competition.
The federal trial court granted summary judgment for Starbucks, ruling that this off-the-clock work time was de minimis and that the plaintiff was not owed compensation. The plaintiff timely appealed to the federal Ninth Circuit Court of Appeals.
What is the de minimis doctrine?
The de minimis doctrine is generally a defense doctrine used under the Fair Labor Standards Act. De minimis non curat lex literally translates to the law does not concern itself with trifles. Under the doctrine, to determine whether work time is de minimis, courts consider: "(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984); see also Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1056-57 (9th Cir. 2010). Applying these standards, numerous courts have held that daily periods of approximately 10 minutes or less are de minimis.
How have courts applied the de minimis doctrine in cases applying California law?
The following exemplify the current trend for applying the de minimis rule to cases involving California wage and hour law:
- Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525, 532-33 (9th Cir. 2013) (five minutes daily spent passing through security clearance on the way to lunch break was de minimis);
- Gillings v. Time Warner Cable LLC, 2012 U.S. Dist. LEXIS 68607, 2012 WL 1656937, at *1, 4 (C.D. Cal. Mar. 26, 2012) (the six minutes it took daily to log into a computer program was de minimis and to monitor and record this time would be "arduous");
- Alvarado v. Costco Wholesale Corp., 2008 U.S. Dist. LEXIS 48935, 2008 WL 2477393, at *3-4 (N.D. Cal. June 18, 2008) (time spent waiting for security checks at the end of closing shifts was held not to be compensable because the "several minutes" waiting time to be let out of the building was de minimis); and
- Abbe v. City of San Diego, 2007 U.S. Dist. LEXIS 87501, 2007 WL 4146696, at *7 (S.D. Cal. Nov. 9, 2007) ("Here, it is undisputed that donning and doffing protective gear . . . takes less than 10 minutes. . . . Therefore, time spent donning and doffing safety gear is de minimis and non-compensable as a matter of law.")
Here, the plaintiff’s novel argument to the Ninth Circuit Court of Appeals is that the de minimis doctrine is not a defense to wage claims asserted under the California Labor Code. However, rather than decide the issue on the merits and perhaps because California wage and hour laws often provide greater protections to employees than do federal laws, the Ninth Circuit Court of Appeals has asked the California Supreme Court to decide the state law issue of whether the federal Fair Labor Standards Act’s de minimis doctrine also applies to claims for unpaid wages in California.
Until the Supreme Court of California renders a decision, what should California employers do in the interim?
The California Supreme Court’s ruling on whether the federal de minimis doctrine is an appropriate defense to California wage claims could take some time. While California employers await the Court’s decision, they should consult with experienced employment counsel regarding implementation of their wage and hour policies as it affects compensation for de minimis off-the-clock work. While it is difficult to predict with certainty whether an employer’s past reliance on the federal de minimis doctrine could result in liability for unpaid wage claims and related penalties, it would seem inequitable for the Court to penalize employers for raising it as a defense when both case law and the California Division of Labor Standard Enforcement (DLSE) have recognized it as such (see, for example, California DLSE Enforcement Manual 46.6.4).