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Thursday
Jul262018

Grande or Venti? CA Supreme Court Weighs in on the De Minimis Question

Lawyer for EmployersWage & Hour Defense

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Starbucks de minimis time lawsuit

De minimis is a Latin phrase that refers to something of little importance, or very irrelevant. The federal Fair Labor Standards Act (FLSA) recognizes that some employee duties are so small, or take such little time, that employers may consider the minute or so spent performing these tasks as non-compensable.

A classic example of a de minimis task is that of unlocking or locking the door in a retail establishment. Another would be the time an employee spends logging into a computer before s/he is able to clock in, or after clocking out. Typically, such tasks takes less than a minute – it is difficult for employers to track that time.

In Troester v. Starbucks Corporation, what some employers may see as a very small issue, made it all the way to the California Supreme Court.

The Plaintiff, Douglas Troester, was a supervisor at a Starbucks, paid hourly wages. In 2012 he claimed his employer failed to compensate him for additional tasks he had to perform after clocking out. These tasks, which took between 4 to 10 minutes each day included: initiating “close store procedure” on the back office computer, activating the alarm, exiting the store, and locking the door. Troester further submitted evidence he occasionally reopened the store to allow employees to retrieve items left behind, waited with employees for their rides, or brought in patio furniture left outside.

Plaintiff totaled this unpaid time at nearly 13 hours over a period of 17 months of employment, amounting to $102.67 dollars of compensable time.

The district court decided for the employer, concluding the de minimus doctrine could be applied. Plaintiff appealed. The Ninth Circuit deferred the matter to the California Supreme Court, with this certified question:

Does the federal Fair Labor Standards Act's de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197?

The Supreme Court held that under the facts of the present case, the relevant wage order and statute do not permit application of the de minimis doctrine.

CA Supreme Court de minimis decision

In its holding, the Supreme Court indicated there is no showing California intended to incorporate a less protective federal law. The Supreme Court further noted that technical difficulties of recording small amounts of time may not excuse compliance as today’s “technological advances may help with tracking small amounts of time.”

However, recognizing it may be impractical to accurately account for every second spent on work, Justice Leondra R. Kruger provided in a concurring opinion examples as to when a limited de minimis principle may apply: 

  • An employer requires workers to turn on their computers and log in to an application in order to start their shifts. Ordinarily this process takes employees no more than a minute (and often far less, depending on the employee’s typing speed), but on rare and unpredictable occasions a software glitch delays workers’ log-ins for as long as two to three minutes.

  • An employer ordinarily distributes work schedules and schedule changes during working hours at the place of employment. But occasionally employees are notified of schedule changes by e-mail or text message during their off hours and are expected to read and acknowledge the messages.

  • After their shifts have ended, employees in a retail store sometimes remain in the store for several minutes waiting for transportation. On occasion, a customer will ask a waiting employee a question, not realizing the employee is off duty. The employee — with the employer’s knowledge — spends a minute or two helping the customer.    

California employers are once again advised to review their policies and practices to confirm they are in compliance. Make sure employees accurately record their time, no matter the amount.

 

Tal Burnovski Yeyni is a wage and hour defense attorney.

 

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