California Employers Must Pay Employees for Minimal and Difficult-to-Track Off-the-Clock Work
California employers must compensate employees for all regularly occurring pre-shift and post-shift tasks that take just a few minutes and are difficult to track, the California Supreme Court recently held.FN1
Off-the-clock work that takes just a few seconds or minutes and is administratively difficult to record often may be excluded from pay under the de minimis rule, which applies in cases involving the federal Fair Labor Standards Act (“FLSA”).FN2 In some cases, courts have applied the de minimis rule to allow employees to be uncompensated for daily periods of time of up to ten minutes.
In Troester v. Starbucks Corporation, the California Supreme Court held that the federal de minimis rule does not apply to California state wage and hour laws, which the court noted were more protective of employees than federal law.FN2 The case involved a coffee shop supervisor’s claims that his closing tasks—including setting the store’s alarm, walking employees to their cars, and occasionally retrieving store patio furniture that had been left outside—required him to work four to ten additional minutes each day. The court held that an employer that requires its employees to work even mere minutes off the clock on a regular basis must find a way to compensate employees for that time, and cannot use the de minimis rule to avoid this obligation. The court further noted, however, that the de minimis rule may apply in “circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.”FN3
Employers in California should consider restructuring workflow to ensure employees can complete all tasks while they are clocked in, and find ways to capture all time employees spend doing work on behalf of the employer by using technological advancements in time-tracking software.FN3 To avoid litigation, employers should further consider auditing their pay practices to ensure all compensable time worked is paid.
FN1: See Troester v. Starbucks Corp., 421 P.3d 1114, 1116 (Cal. 2018), https://www.bloomberglaw.com/public/desktop/document/Troester_v_Starbucks_Corp_No_S234969_2018_BL_265635_Cal_July_26_2?1534396125. The California Supreme Court issued the opinion on referral from the Ninth Circuit Court of Appeals.
FN2: Troester, 421 P.3d at 1118; see also Jon Steingart, Starbucks Has to Pay for Drips of Off-the-Clock Work (1), Bloomberg Law (June 26, 2018), https://news.bloomberglaw.com/daily-labor-report/starbucks-has-to-pay-for-drips-of-off-the-clock-work. The Industrial Welfare Commission (“IWC”) wage orders, as well as provisions of the California Labor Code, govern wage and hour issues in California.
FN3: Troester, 421 P.3d at 833-34. Such work may include reading work schedules sent via email or text message; answering a customer’s questions after they’ve clocked out; or dealing with a software glitch before or after their shift. See David Amaya, ‘De Minimis’ No More?: Calif. Supreme Court Finds Employers Must Pay for Small Amounts of Off-the-Clock Work, The Recorder (July 31, 2018), https://www.law.com/therecorder/2018/07/31/de-minimis-no-more-calif-supreme-court-finds-employers-must-pay-for-small-amounts-of-off-the-clock-work/