United States: California Supreme Court Holds That Regular, Non-Trivial Time Worked "Off The Clock" Is Compensable

Embodied in the federal Fair Labor Standards Act (FLSA), the de minimis doctrine provides that employers are not required to pay employees for small amounts of time that employees spend "off the clock" on tasks that are difficult or impractical to track, such as logging into a computer. Whether the de minimis doctrine applies to California wage and hour law has been an open question for years.

On July 26, 2018, the California Supreme Court issued the long-awaited decision in Troester v. Starbucks Corporation, in which it declined to apply the de minimis doctrine and ruled in favor of the employee. Although the court ruled in favor of the employee, its decision is limited to the facts of that particular case and leaves open the possibility that the de minimis doctrine might be applicable to other factual scenarios. This decision, unfortunately, will continue the ambiguity surrounding the applicability of the de minimis doctrine to wage and hour claims in California. 

The Troester Majority Decision

In Troester, Douglas Troester, a non-exempt Starbucks supervisor, sued the company for violations of the California Labor Code. Specifically, Troester alleged that Starbucks failed to pay wages for time he spent doing tasks after he was required to clock out at the end of his shift, including activating the store alarm, locking the front door, and walking co-workers to their cars. The federal district court granted summary judgment in Starbucks' favor holding that while the employee's closing activities occurred regularly, they typically took him only between four and ten minutes per day, and were administratively difficult to track and compensate. As such, the court held that these activities were de minimis time for which no wages were due. This decision was appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals certified for decision by the California Supreme Court the question of whether the de minimis doctrine is available as a defense to wage claims brought under the California Labor Code.

The Supreme Court began by examining the text and history of relevant statutes and the Industrial Welfare Commission (IWC) wages orders. As to this point, the court held that California's wage and hour laws have not adopted the de minimis doctrine found in the FLSA. In recognition of this fact, the court next analyzed whether California applies "some version of the [de minimis] doctrine" to wage and hour claims as a matter of state law. The court concluded that, as to the specific factual circumstances in Troester, the relevant laws do not permit application of the de minimis doctrine given that Troester's employer required him to regularly work several minutes per shift "off the clock." Despite this ruling, the court made clear that it was not deciding "whether there are circumstances where compensable time is so minute or irregular that [it] is unreasonable to expect the time to be recorded." In other words, the court left open the possibility for circumstances to arise in the future that warrant a practical application of the de minimis principles to California wage and hour law.

Justice Kruger's Concurring Opinion

In recognition of the ambiguity of the majority decision, Justice Leondra Kruger wrote a concurring opinion to address this uncertainty. Justice Kruger first acknowledged her agreement with the majority's decision that employees are entitled to be paid for all hours worked, including regular "off the clock" work for "nontrivial periods." However, Justice Kruger further stated that "the law also recognizes that there may be some periods of time that are so brief, irregular of occurrence, or difficult to accurately measure or estimate, that it would neither be reasonable to require the employer to account for them nor sensible to devote judicial resources to litigating over them." She provided the following examples to illustrate the situations in which a California court might apply the principles of the de minimis doctrine to California wage and hour law:

  • The requirement for employees to turn on their computers and log in to an application in order to start their shifts. This ordinarily takes no more than a minute, but on rare occasions a workers' log-in is delayed for as long as two to three minutes.
  • Work schedules and changes are ordinarily distributed during working hours. However, employees are occasionally notified of schedule changes by e-mail or text message during their off hours and are expected to read and acknowledge the messages.
  • Employees in a retail store sometimes remain in the store for several minutes after a shift while waiting for transportation. A customer will occasionally ask a waiting employee a question, not realizing the employee is off duty. The employee – with the employer's knowledge – spends a minute or two helping the customer. 

Practical Considerations

Moving forward, it is imperative that employers have appropriate procedures in place to account for all hours worked by employees as well as a comprehensive understanding of any "off the clock" work that may occur as a circumstance of certain positions. Your Lewis Brisbois employment attorney is available to assist with evaluating timekeeping procedures or implementing new policies to reflect this development and continued uncertainty in California wage and hour law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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