California Refuses To Adopt FLSA De Minimus Rule

Randi Klein Hyatt
Randi Klein Hyatt

On July 26, 2018, California’s Supreme Court ruled in Troester v. Starbucks Corporation that the FLSA’s de minimus rule does not apply to California wage and hour claims.  The FLSA’s de minimus rule is firmly established in federal wage and hour law, and generally provides that insubstantial or insignificant periods of time beyond typical working hours that cannot be precisely recorded may be disregarded.  The Ninth Circuit, in which California sits, looks to the (a) administrative difficulty of recording such time, (b) aggregate amount of such time, and (c) regularity of the disregarded work.  California and many other states, however, provide greater protections than those provided by the FLSA.

In Troester, the employee was a Starbucks shift supervisor, who would typically work four to ten minutes each day after he clocked out.  This worked out, over his 17 months of employment, to $102.67 of unpaid time.  While this wouldn’t seem enough to make a federal case of it, Troester sued on his own behalf and on behalf of a putative class made up of all non-managerial employees in California who performed store closing activities between mid-2009 and October 2010.  This certainly upped the ante for Starbucks.

The California Supreme Court made two important determinations.  First, it ruled that California state law never adopted the FLSA de minimus rule and, therefore, was not bound by it.  Second, it ruled that the de minimus exception did not apply to Troester’s case, but left the door open to the possibility that such a situation may exist.  Indeed, while technological advances make it easier to record all the time an employee spends on work matters, there will always be occasions when an employee performs some small task or devotes time to a work matter for which he or she simply cannot be compensated.

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