Every Minute Counts, California Supreme Court Rules in Notable Wage and Hour Case
Author: Michael Cardman, XpertHR Legal Editor
July 30, 2018
California employers must track small amounts of regularly occurring work time - even as short as four to 10 additional minutes each day - and pay employees for that time, according to the California Supreme Court.
The federal de minimis doctrine allows employers to disregard uncertain and indefinite periods of time of a few seconds or minutes in duration. But California's wage and hour statutes and regulations have not incorporated the de minimis doctrine, the California Supreme Court ruled in Troester v. Starbucks Corp.
As a result, a California employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to pay employees for that time by invoking the de minimis doctrine, the Court held.
Minutes Add Up to Hours
The plaintiff in the Troester case was a shift supervisor for Starbucks Corp. He submitted evidence that he was required to clock out at the end of every shift before performing work tasks, including:
- Transmitting data to Starbucks's corporate headquarters;
- Activating the alarm;
- Exiting the store;
- Locking the front door;
- Reopening the store so employees could retrieve items they had left behind;
- Bringing in store patio furniture mistakenly left outside; and
- Walking coworkers to their cars.
These tasks took between four to 10 minutes each day. Over the 17-month period of his employment, they totaled almost 13 hours, or about $102 at the then-applicable minimum wage of $8.00 per hour.
"That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares," the Court stated. "What Starbucks calls 'de minimis' is not de minimis at all to many ordinary people who work for hourly wages."
The 9th Circuit Court of Appeals had posed the question of whether California's wage and hour statutes and regulations have incorporated the de minimis doctrine to the California Supreme Court along with another question: Does the de minimis doctrine apply to wage and hour claims? In other words, although California has not adopted the federal de minimis doctrine in its wage and hour laws and regulations, does some version of the doctrine nonetheless independently apply to wage and hour claims as a matter of state law?
The California Supreme Court held that the relevant Industrial Welfare Commission Wage Order and statutes do not allow application of the de minimis rule on the facts given to it by the 9th Circuit, in which the employer required the employee to work "off the clock" several minutes per shift. It did not decide whether there are circumstances in which compensable time is so small or irregular that it is unreasonable to expect the time to be recorded.
It remains to be seen whether this leaves the door open for a de minimis defense in a case with different circumstances. The tasks in question would most likely need to be extraordinarily minute or irregular, given the Court's observation that employers are in a better position than employees to track small amounts of regularly occurring work time.
According to the Court, options for employers include:
- Restructuring work so that employees do not have to work before or after clocking out;
- Customizing and adapting available time-tracking tools, or developing new ones when no off-the-shelf product meets their needs; or
- Reasonably estimating work time through, for example, surveys, time studies or a fair rounding policy, and then compensating employees for that time.