De Minimis Does Not Apply, Even Where Tasks Take Less Than A Minutein Agriculture, Employment Law
By: Michael J. Bridge, McKague Rosasco LLP on July 29, 2019
In Rodriguez v. Nike, a class of employees claimed unpaid wages for time spent undergoing security checks after clocking out. Nike won summary judgment in the federal district court by arguing the federal de minimis doctrine precluded recovery of the security check time. Under the de minimis doctrine, employers may disregard small amounts of time otherwise compensable under the federal Fair Labor Standards Act that are difficult to record. Several months later, the California Supreme Court issued its decision in Troester v. Starbucks holding the de minimis doctrine does not apply to wage and hour claims brought under the California Labor Code.
On June 28, 2019, the Ninth Circuit reversed the grant of summary judgment in Rodriguez v. Nike. While Troester held the federal de minimis doctrine does not apply to California wage and hour claims, it did not decide “whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.” Before the Ninth Circuit, Nike argued the security checks at issue were de minimis even under Troester.
Nike argued Troester was limited to compensating employees who “work minutes off the clock on a regular basis or as a regular feature of the job.” Nike claimed only 3.3% of the security checks in question lasted more than 60 seconds. The Ninth Circuit rejected this argument because it conflicts the Labor Code’s requirement that employees be paid for all hours worked. Specifically, the Ninth Circuit held that where employees do work that is “more than a trifling amount of time” that occurs “on a regular basis or as a regular feature of the job,” employers may not raise a de minimis defense under California law.
In Rodriquez, the Ninth Circuit also emphasized that Troester held “employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring work time.” Similarly, Rodriguez notes that even where tracking small periods is legitimately difficult, employers can “reasonably estimate work time” and pay employees accordingly. Rodriguez also suggests employers may be able to restructure work duties so employees do not need to work after clocking out.
The Rodriguez decision is a reminder that California employers need to regularly review their wage practices to avoid exposure to claims for unpaid wages. Any practice requiring employees to do work-related tasks off the clock before or after a shift should be carefully evaluated. Examples of time that employers should consider include the time to walk in/out of a field, donning and doffing safety gear, returning tools or equipment at the end of the day and hand washing (when required by the employer). If you have any questions about paying employees for all time worked, contact the experts at McKague Rosasco.