Is it lawful under California law for my employer to not pay for minimal (or de minimis) amounts of unrecorded time repeatedly or regularly worked?
On July 26, 2018, in Troester v. Starbucks Corporation, the California Supreme Court answered this question in the context of an employee regularly required to work after he clocked out. A Starbucks coffee shop employee brought a putative class action in California against his employer Starbucks, alleging unpaid wages in violation of the California Labor Code and Wage Orders.
The Supreme Court held that California’s wage and hour statutes or regulations have not incorporated a “de minimis” doctrine to pay for time worked found in the Fair Labor Standards Act (FLSA). The Court explained that while a general de minimis rule is a background principal of state law, the rule was not applicable to protect an employer from employee Troester’s wage claims for regularly performing duties after clocking out.
Plaintiff Troester on a daily basis would have to work for four to ten minutes after he clocked out for the day. Starbucks claimed this time was not compensable as de minimis. Troester’s repeated duties included transmitted sales information to corporate headquarters, activating the store alarm, exiting the store, locking the front door, and walking coworkers to their cars in compliance with employer policy. The Court held that California’s statutes and wage orders did not allow employers to require employees to routinely work for a few minutes off-the-clock without compensating the employees. As the California Supreme Court explained: “An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine. As the facts here demonstrate, a few extra minutes of work each day can add up. . . . to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.”
An important part of the reasoning of the court is the idea that technology has changed the ability of employers to track time down to the second. The federal rule that an employer did not have to pay for de minimis time arose from the practical administrative difficulty of recording work time in a world of fixed time clocks. Importantly, the Court explained: “Employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring work time. One such alternative, which it appears Starbucks eventually resorted to here, was to restructure the work so that employees would not have to work before or after clocking out. Moreover . . . technological advances may help with tracking small amounts of time. An employer may be able to customize and adapt available time tracking tools or develop new ones when no off-the-shelf product meets its needs. And even when neither a restructuring of work nor a technological fix is practical, it may be possible to reasonably estimate work time—for example, through surveys, time studies, or, as [other courts have] suggested, a fair rounding policy—and to compensate employees for that time.”
The reality is that technology undercuts the rationale for a de minimis exception. Instead, of the old punch clock, employees now have broad access to employer technology which permits time tracking through computers or mobile devices. Technological devises and systems enable employers to easily and contemporaneously record employees’ hours worked, breaks and meals taken, and other required information.
The Court explained that it was leaving open what appears to be a narrow potential exception: “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.” So the answer to the question of whether an employer has to pay an employee for unrecorded small amounts of time is: Yes, at least where the time is not “so irregular or brief” as to make recording of the time unreasonable.