The concept of “de minimus” time has been around for decades under the Fair Labor Standards Act (FLSA), which is the federal body of law that governs wage and hour issues.  In 1947, the U.S. Supreme Court established the de minimis rule when it held that the FLSA generally is not concerned with “trifles,” when the matter involves only a few seconds or minutes of work beyond the scheduled working hours.  For years, California echoed the FLSA test that determined whether a minute of time here and there needed to be compensated, that is, until 2018.   On July 26, 2018, the California Supreme Court issued its landmark ruling in Troester v Starbucks, essentially abolishing the concept of de minimus time under the California Labor Code.  

In Troester, the lead plaintiff was a non-exempt shift lead who had the responsibility of locking up the Starbucks and turning on the alarm upon close and unlocking the door and disarming the alarm when opening.   The time spent engaging in these pre and post shift tasks took place after he had logged off the store’s timekeeping system.   He also alleged that on occasion, he had to re-open the door for another employee who may have forgotten something.  He estimated that the total amount of off the clock time he had logged in his 17 months had amounted to $102.67.   The Supreme Court said that even though the unpaid time comprised only minutes a shift, the over one hundred of unpaid dollars to Mr. Troester would have been enough to pay a utility bill.   Not enough to pay my utility bills, but okay. 

The Supreme Court reasoned that the law needed to change to keep up with changing technology.   They assumed that employers now had the ability to measure employee time to the minute, and therefore, employees should be paid for every minute of work.  However, they made the incorrect assumption that employees tracked their time on their phones.   Most restaurants have their employees log time in their Point of Sale (POS) systems, so employees can ring up sales.   These POS systems do not live on employee phones.  Nevertheless, the Troester decision is now the law of the land, at least, the land of California.

Since 2018, we have seen a plethora of lawsuits employ the Troester ruling.  As you can imagine, plaintiff attorneys have been quick to apply this new rule to class action and PAGA lawsuits.   For example, Apple faced a class action suit in 2020 based on its bag check policy – having employees wait for security to check their bags upon entering and exiting the premises.   We also saw the Troester concept applied during the pandemic to pre-shift symptom and temperature checks.   We made sure to remind our clients to compensate employees for this time, in anticipation of the legal challenges.  

In 2024, the Ninth Circuit Court of Appeals issued a decision interpreting the FLSA and reaffirmed that the concept of de minimus time still exists under federal law.   However, even though the Ninth Circuit is the panel that reviews federal court decisions in California, this recent case does not change California law.   The 2018 Troester v Starbucks decision remains in place, and we regularly see lawsuits filed on this premise. 

Back in 2018, we spent a lot of time writing and speaking about the Troester decision and its impact on California employers.   When I conduct audits, I will always raise this issue.   But it is worth the reminder for all of you.  

Where can de minimus time issues arise?  Obviously, in situations like Starbucks, which would affect all of you with restaurant and retail locations.  But it also can be triggered for employees who log their time on the computer and every day must wait for system to start up.   It can also include “donning and doffing” safety equipment or washing hands before work starts.   Any time waiting in line for a security check must be paid, and we even see challenges to long walks and lines to the time clock.  I had one case that measured the time it took to open a security gate at the employee parking lot.

Examine the practices at your workplace.  Make sure you are capturing every minute that a non-exempt employee works.  Move your time clock or add an additional one, if necessary.  You can also capture this off the clock time by manually adding in time at the end of the week or pay period.   

The missed minute or two of time may not seem like it amounts to much, but every minute of missed pay in a payroll period equates to a $100 PAGA penalty, per employee, plus interest, plus attorneys’ fees.  These missed few minutes can also throw an employee into overtime or a missed meal break situation.  It is why these de minimus time cases are so popular with PAGA attorneys.  

The California Supreme Court in the Apple decision examined security check policy in terms of employee choice.  Apple argued that only employees who chose to bring personal items to work were impacted by the policy.  The Court ruled that employee choice was a factor, but not the only one.

Instead, the Apple Court delineated a multi-faceted test to determine if the off the clock time was compensable, including:

• The mandatory nature of the activity;
• The location of the activity;
• The degree of the employer’s control;
• Whether the activity primarily benefits the employee or employer; and
• Whether the activity is enforced through disciplinary measures.

But we don’t want to be in the position of having to make these arguments.   Consequently, watch for time spent doing brief off the clock tasks, like answering an email or responding to a text, or even reviewing an alert that was sent by their managers.   Make sure your policies and practices limit this work or account for it in your timekeeping.   And remember, even if your written policies preclude employees from working off the clock, if it’s happening, unauthorized or not, it’s safer to compensate for it. 

Take this as another reminder that we should schedule that audit I keep referencing.  I am conducting these audits for clients regularly, and no matter how long I have worked with you all, I always spot issues.  It’s a thorough checklist.  Let’s get one of these audits on calendar for you in the next few months.  Remember, auditing your payroll practices is one of the factors referenced in the new PAGA Reform to reduce those penalties.