In Rodriguez v. Nike Retail Services, Inc. (June 28, 2019), the Ninth Circuit reviewed a pair of federal trial court decisions that concluded that the time spent going through “bag checks” before leaving the stores, but after clocking out, was de minimis (too small) and therefor the employers had no obligation to pay employees for that time. To decide whether those decisions were correct, the Ninth Circuit examined in Troester v. Starbucks Corp., 5 Cal., 5th 829 (2018) as mod., reh. den. (Aug. 29, 2018) (Troester), a recent California Supreme Court decision in which the California Supreme Court rejected the federal de minimis rule. Troester explained that the de minimis doctrine applicable to the federal Fair Labor Standards Act (FLSA) has never been adopted as part of California’s wage and hour laws, either in the Labor Code or the implementing Wage Orders. Troester affirmatively held that employees must be compensated for all hours worked, and the burden rests with employers to figure out how to pay for time that is difficult to capture easily.
Summarizing Troester into a single paragraph, the Ninth Circuit refused to interpret Troester as replacing the federal de minimis doctrine’s 10-minute daily threshold with a state-law 60-second analogue. The Court explained that such a construction would “read far too much” into Troester’s passing mention of “minutes,” and clash with Troester’s reasoning, which emphasized the requirement under California law that employees must be paid for all hours worked. The Ninth Circuit expressed serious doubt that Troester would have been decided differently if the closing tasks at issue in Troester had taken only 59 seconds per day. The Ninth Circuit recognized Troester as holding that all time worked must be paid unless it is so tiny or irregular that it is effectively impossible to capture. But, as Troester made clear, the burden to show that impossibility lies with the employer, not the employees.
If you have questions about whether any small amounts of work you do or did for your employer should have been compensated, Moon & Yang can help you make that determination.