California says “Goodbye” to the De Minimis Doctrine
By: Erica H. Gruver and Emily K. Harvin
For years, courts applied the de minimis doctrine “to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.” Troester v. Starbucks Corp. 5 Cal. 5th 829, 835 (2018). Recently, California courts have held that the de minimis doctrine does not apply to wage and hour claims brought under the California Labor Code, which may increase exposure for California employers to potential class actions regarding menial tasks that employees may perform “off the clock.”
By way of background, in Troester, the California Supreme Court determined the de minimis doctrine did not apply where the manager of a coffee shop was required to clock out before completing the following tasks: 1) performing the “close store procedure” on a computer; 2) activating the alarm; 3) exiting the store; 4) locking the front door; and 5) walking coworkers to their cars. On average, together these tasks took four to ten minutes of “off the clock” time, and totaled 12 hours and 50 minutes during the manager’s 17-month employment with the company. The Court ruled that the employer must compensate hourly employees for off-the-clock work that occurs on a daily basis.
Critically for employers, the Troester ruling is already making its way through the courts. For example, in Rodriguez v. Nike Retail Services, Inc., 928 F.3d 810 (2019), plaintiff-employees filed a class action seeking compensation for “off the clock” exit inspections, which occurred at the end of each shift. The district court granted summary judgment to the employer, and held that plaintiffs’ state law claims failed based on the de minimis doctrine. When making its ruling, the district court noted that Troester was pending before the California Supreme Court and it had to apply the law as it currently existed.
Predictably, the plaintiffs in Rodriguez appealed and, while the appeal was pending, the California Supreme Court issued its decision in Troester. Subsequently, the U.S. Ninth Circuit Court of Appeals reversed the district court’s grant of summary judgment to the employer based on Troester and remanded the case for further proceedings. Notably, the court rejected the employer’s contention that because there was evidence that only 3.3% of the exit inspections lasted more than 60 seconds, the time was de minimis even under Troester, and reasoned that the exit inspections at issue did not appear to be “so irregular that it is unreasonable to expect the time to be recorded.”
The Ninth Circuit’s ruling in Rodriguez indicates that the Troester ruling is here to stay. Accordingly, employers with workforces in California may wish to consider examining whether their employees perform “off the clock” for time that may have previously been considered de minimis to minimize legal risk.
**Polsinelli provides material for informational purposes only. The material provided herein is general and is not intended to be legal advice.