Overview: It's hard to improve on the source material when it comes to describing the de minimis doctrine.
In a 1946 ruling, the Supreme Court wrote: "When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.
The US Department of Labor (DOL) says employers may disregard these seconds or minutes only when they are "uncertain and indefinite," and "justified by industrial realities." Employers may not arbitrarily fail to count any time spent working, no matter how small, if it is "practically ascertainable" or regularly scheduled.
However, to make bookkeeping easier, employers may round employees' starting times and stopping times to the nearest five minutes, to the nearest one-tenth of an hour, or to the nearest quarter of an hour. This rounding must average out over time so that employees eventually are compensated for all the time they work.
Trends: Modern automated timekeeping systems make it more difficult than ever for employers to argue that employees' working time is not "practically ascertainable." While rounding is clearly permitted, the de minimis doctrine should be invoked only after consulting with counsel.
Author: Michael Cardman, Legal Editor
Updated to reflect a San Francisco law regarding lactation accommodation, effective January 1, 2018.
Updated to reflect expanded protections under the Nevada Pregnant Workers' Fairness Act, effective October 1, 2017.
Enhanced with information about the day of rest law.
The US Department of Labor (DOL) has issued a final rule that increases penalties assessed after January 13, 2017, for violations that occurred after November 2, 2015.
In Corbin v. Time Warner, the 9th Circuit Court of Appeals held that a neutral rounding policy will not violate the FLSA even if every employee does not always gain or break even over every pay period.
This How To details the steps a prudent employer should take to determine whether an employee must be paid for all time spent in waiting.
HR guidance on complying with the FLSA’s de minimis doctrine and the rounding of working time.