Under the federal Fair Labor Standards Act (FLSA), employers may invoke the so-called de minimus rule to avoid paying employees for up to 10 minutes of “off the clock” work per day. Not so under California law, the California Supreme Court held in Troester v. Starbucks Corp., a decision issued on July 26, 2018.
Troester holds that at least when an employer requires its employee to work minutes off the clock on a regular basis or as a regular feature of the job, it may not evade its obligation under California law to compensate the employee for that time by invoking the de minimisdoctrine.
However, the California Supreme Court declined to decide whether a de minimis defense may ever apply to wage and hour claims in other circumstances, “given the wide range of scenarios in which this issue arises.” So California employers are left without clear guidelines about when the defense might be available, while Troester opens a whole new field for plaintiffs’ attorneys to pursue wage and hour class actions.
Although Troester involved a shift supervisor at a Starbucks, its holding has far-reaching implications in other sectors that may be vulnerable to industry-specific issues. For example, are banks capturing all compensable time that bankers may spend opening or closing the vault for the day, counting out registers at the beginning or end of their shift, or logging into and out of the computer system for the day? What about employees who read or respond to emails, or take calls during a company’s “off hours”? When viewed in a vacuum, otherwise seemingly minimal tasks may appear immaterial or “de minimus.” But when viewed in the aggregate, these same tasks could very well be considered compensable under California wage law. Also, the Supreme Court noted that modern technology allows employees to more easily record small increments of work time and time worked off site.
Having clear written policies in place prohibiting “off the clock” work with specific provisions regarding how to report time worked while not “on the clock” may help minimize potential liability. California employers, regardless of industry, would be wise to reexamine their own written policies in light of Troester to ensure that their employees’ compensable work, even if previously thought to be de minimus, is accurately recorded and properly compensated.
For more information on any of these labor employment and employment compliance issues, contact Rhonda L. Nelson at 415-677-5502, rln@severson.com; Matthew A. Garfinkle at 949-225-3752, mag@ severson.com; or An Le at 949-225-7972, al@severson.com.
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