California’s wage-and-hour laws are the most protective in the country. These protections, however, often lead to bankrupting, class-action lawsuits.

Wage-and-hour class actions are filed every day in California courts, and the numbers keep rising. Wage-and-hour class actions filed under California’s Private Attorney General Act of 2004, for instance, have increased more than 400 percent from 2005 to 2013.

Recently, the California Supreme Court reminded businesses that, in the state, any practice that requires off-the-clock work – regardless of how minimal – can be grounds for a lawsuit.

The Starbucks case: In August, the state Supreme Court ruled in Troester v. Starbucks that California law does not provide a grace period for off-the-clock work, regardless of how minimal the time at issue.

This ruling deviates from an established federal rule in which there is no wage liability for de minimis unpaid time. “De minimis” means the amount is so minimal it does not warrant legal action. For instance, under federal law, a practice that shorted a single minute would not create a cause of action.

In the Starbucks case, the plaintiff filed a class action arguing that non-exempt workers were not compensated for the few minutes it took every day after clocking out to set the alarm and lock the door, among other similarly minimal tasks. All told, these tasks required the plaintiff to work an additional 4 to 10 minutes each day.

Over his 17 months of work, the plaintiff’s unpaid wages added up to $102.67. Not surprisingly, the business asserted the federal de minimis rule. The court held that California’s employee-protective wage-and-hour statutes have not adopted the federal de minimis rule and that the business was not excused from paying for the routinely required off-the-clock work.

The court left open the possibility that the de minimis rule might apply to some future irregular or brief activity where it would not be reasonable to track or compensate.

What businesses need to do right now: The duty to track and compensate employees for even very small amounts of regularly occurring work applies regardless of how difficult it may be to capture. Businesses should:

Audit your practices: Even minimal, everyday tasks such as locking up can create exposure to claims. Businesses should audit routine duties of non-exempt employees to determine whether work is going unrecorded. Scrutinize clock-in and clock-out processes, as well as beginning-of-the-day and end-of-the-day routines.

Review, revise and train on wage-and-hour policies: Employment policies and training must make clear that performing unauthorized work and off-the-clock work is strictly prohibited. The policies must be clear that all work must be reported, tracked and paid. Policies also should mandate written reports of any unpaid work so corrections can be made as soon as possible. Employees must be trained on the policies, and the training must be documented.

Eliminate difficult-to-track and high-autonomy assignments: Non-exempt employees should not be given mobile devices for off-duty use. This includes highly desired technology such as smartphones and tablets.

While such devices provide convenience, work performed after hours by non-exempt employees can be difficult to track. Similarly, businesses should monitor employee access and use of network and email systems to ensure non-exempt employees are not working off-the-clock.

Finally, while many employees may seek to work from home or without supervision, such high-autonomy assignments can easily lead to untracked work and should be avoided.

This article first appeared in The Press-Enterprise and other Southern California Newspaper Group publications online on Oct. 1, 2018. Republished with permission.

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