California Supreme Court Will Decide Whether Brief Time Spent Before And After A Shift Is Compensable
Published by Eric A. Welter on June 15, 2018
The Supreme Court of California heard oral argument in Troester v. Starbucks Corporation, addressing whether employers must compensate employees for de minimis periods of time before and after their shifts.
Are employers required to compensate their employees for brief periods of time before and after their employees start and finish their shifts? Under federal law and as applied historically in California, the answer has been “no.” This is known as the “de minimis doctrine” and has traditionally been used as an affirmative defense to FLSA, state wage and hour claims, and appears in the Division of Labor Standards and Enforcement (DLSE) Enforcement Manual. The doctrine states that employers are not required to compensate employees for small increments of time spent off the clock preparing for or concluding a work shift. Courts determine whether time is de minimis by analyzing: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of additional the additional work. The Northern District of California granted Starbucks’ Motion for Summary Judgment, applying the de minimis doctrine and finding the time de minimis. Plaintiffs appealed to the Ninth Circuit Court of Appeals, which then referred the case to the California Supreme Court because the California Supreme Court has yet to decide this issue of state law.
In Troester v. Starbucks Corp., No. S234969, the named plaintiff is a former shift supervisor at Starbucks. Troester alleges he and other staff were trained, and trained other staff, to clock out on the computer system before initiating the closuring procedure on a separate computer. Troester would also lock the store and walk his co-workers to their cars as required by the company’s safety guidelines. These tasks allegedly took approximately 4 to 10 minutes per day, which, when aggregated, equaled almost 13 hours over the course of the almost year and a half Troester worked for the store.
Plaintiffs argue that the California Labor Code and Wage Orders employers must pay employees for all “hours worked,” which is defined as all time the employee is subject to the control for the employer and the employee is “suffered or permitted to work.” Wage Order No. 5 Subd. 2(K). Plaintiffs’ argument is that the de minimis doctrine is at odds with California law.
Starbucks countered by arguing that the time it took Troester to complete the tasks after clocking out was typically four minutes or less, the de minimis doctrine has been used in lower California courts for a number of years, federal law provides guidance to interpret state law when there is no conflict and the language that an employee must be compensated for “all” “hours worked” is identical to federal law, and the DLSE endorses this standard.
On May 1, 2018, the California Supreme Court heard oral argument in this case. The panel’s questions suggest the court is skeptical of the de minimis doctrine and there is a significant likelihood they could hold that the de minimis doctrine does not apply in California.
Employers should keep an eye out for how the California Supreme Court decides Troester as it may have a significant impact on time-keeping practices. Employers should review their wage and hour policies and analyze whether their employees are working compensable work for brief durations.Topics: California, Class Action, Complex Litigation, Employment Litigation, time-keeping, Wage and Hour, Wage and Hour Compliance and Litigation