In California: Regular Off-the-Clock Work Compensable

On July 26, 2018, the California Supreme Court issued a long awaited decision in the matter of Troester v. Starbucks Corp. (Cal. 2018). The Court was asked by the federal Ninth Circuit Court of Appeals to decide whether the de minimis doctrine applied to alleged wage and hour violations under California law. Under the de minimis doctrine, which is applied to certain violations of the Fair Labor Standards Act, some “technical” violations of wage and hour laws are considered to be “too small” to garner legal attention. As the Court itself recited, the term derives from the Latin phrase, “De minimis non curat lex,” roughly translated to, “The law does not concern itself with trifles.”

In the context of the Troester case, it is alleged that Starbucks Corp. required its employees to routinely work off-the-clock for several minutes each day. The specific facts involve a manager, Douglas Troester, who performed certain tasks after closing his store each day. These tasks included activating the store’s alarm, locking the store, walking employees to their cars, and rarely, reopening the store for employees to retrieve forgotten items. Since the Court’s decision is heavily based on the specific facts of the case, please review the nature of the alleged wage and hour violation in its own words:

  • “The undisputed facts show that, on average, Plaintiff activated the alarm approximately one minute after he clocked out.”
  • “Moreover, he did so within two minutes on 90 percent of the shifts and within five minutes on every shift.”
  • “Once he set the alarm, Plaintiff needed to exit the store within one minute to avoid triggering the alarm.”
  • “And Plaintiff testified that it took 30 seconds to walk out of the store.”
  • “He then locked the door, which took 15 seconds to ‘a couple minutes,’ and walked his coworkers to their cars, which took 35 to 45 seconds.”
  • “On rare occasions—once every couple of months—Plaintiff spent a few minutes letting coworkers back inside the store or bringing in patio furniture that he forgot to retrieve before clocking out.”

The Court found that Mr. Troester’s unpaid time, over the course of 17 months, totaled 12 hours, 50 minutes. Critical to employers’ consideration, this unpaid time resulted from activities that were “regularly” or “routinely” occurring. After finding that, in the context of wage and hour jurisprudence, the law “does care for small things,” the Court held that California law does provide for a violation and remedy when an employee regularly performs certain off-the-clock tasks. In other words, the de minimis doctrine does not apply to violations of California wage and hour law.

However, the Court left open the question whether there are tasks that are too “irregular” or “short in duration” to escape the purview of California’s wage and hour laws. Using the Troester decision as a guideline, California employers should determine how much off-the-clock work is being performed by their employees. If, in line with Troester, the work performed has the potential to total hours of unpaid work when examined over the course of a year or more, then employers should consider putting into place more accurate time tracking measures, such as clock-out and clock-in apps on phones. If, however, employers find that employees are performing less than a minute or a few minutes of off-the-clock work each shift, they will be left wondering whether a court will later find that such work should have been paid. Given that the de minimis doctrine does not apply to California wage and hour law, the question remains whether enforcement will nevertheless follow the rules of practicality.

For strategies on California legal compliance, please consult with the Employers Council’s California legal services group at CAInfo@EmployersCouncil.org.