Off-clock time which employees are expected to put in regularly, for such purposes as locking up, cannot be disregarded under California wage-and-hour laws, which do not incorporate the de minimis doctrine found in the federal Fair Labor Standards Act, the Supreme Court said yesterday in response to a question certified by the Ninth U.S. Circuit Court of Appeals.
The unanimous opinion, by Justice Goodwin Liu, adds:
“We further conclude that although California has a de minimis rule that is a background principle of state law, the rule is not applicable here. The relevant statutes and wage order do not allow employers to require employees to routinely work for minutes off-the-clock without compensation. We leave open whether there are wage claims involving employee activities that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”
Justice Mariano-Florentino Cuéllar wrote a concurring opinion, as did Justice Leondra R. Kruger, who was joined by Court of Appeal Justice Elizabeth Grimes of this district’s Div. Eight, sitting on assignment.
The state high court accepted the certified question on Aug. 17, 2016. Proceedings have been stayed in the Ninth Circuit pending receipt of the response.
Putative Class Action
The appellant in the case is a Starbucks employee, Douglas Troester, who brought a putative class action in Los Angeles Superior Court, contending he was entitled to be paid for the time he spent closing the store after he had clocked out, and that others similarly situated had a like entitlement. Troester said he activated the store alarm, locked the front door and walked co-workers to their cars — tasks that required him to work for four to 10 additional minutes a day.
Starbucks removed the case to the U.S. District Court for the Central District of California based on diversity of citizenship. Then-District Judge Gary A. Feess (now a private judge) granted summary judgment in favor of Starbucks.
While Feess said it would be difficult for an employer to track the additional time that he or she worked, Liu suggested that employers could use technology for that, or restructure employees’ work so they don’t have any tasks after they clock out. Employers can also estimate the additional time, he said.
Flood of Lawsuits
In a brief filed with the California Supreme Court, attorneys for Starbucks said Troester’s argument could lead to “innumerable lawsuits over a few seconds of time.” The U.S. Chamber of Commerce, in an amicus brief, also warned of the possibility of “significant liability” to businesses in the state.
Troester was seeking payment for 12 hours and 50 minutes of work over a 17-month period. At $8 an hour, that amounts to $102.67.
“That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares,” Liu remarked. “What Starbucks calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.”
Veena Dubal, as associate professor at the University of California, Hastings College of the Law, who teaches labor law, commented:
“The court is saying, ‘We haven’t really drawn a line with regard to what is trivial and what is not trivial, but in this case, the time that the employee was not compensated was significant.’ ”
Kruger wrote separately to say that there may be some periods of time that are “so brief, irregular of occurrence, or difficult to accurately measure or estimate,” that requiring an employer to account for them would not be reasonable.
She cited as examples a glitch that delays logging in to a computer to start a shift or having to read and acknowledge an email or text message about a schedule change.
“I write separately to emphasize that our opinion today is both principled and practical: It protects workers from being denied compensation for minutes they regularly spend on work-related tasks, but does not consign employers or their workers to measure every last morsel of employees’ time. The latter point is as important as the former, because advances in technology and changes in behavioral norms are constantly shaping our understanding of what fractions of time can be reliably measured, and what counts as too trifling a moment to measure in the wage and hour context. While there is no de minimis rule that applies to this domain of California law — at least where minutes of regular off-the-clock time are at issue — there is room for a rule of reason to avoid a situation forcing employers to monitor every fraction of every second of employee time.”
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