An ancient maxim of jurisprudence states that “the law disregards trifles.” Or in Latin: De minimis non curat lex. The underlying principle is that some alleged wrongs are so trivial or hard to measure that courts don’t want to be bothered with them. At least, that’s true of most courts. In an opinion issued today, the California Supreme Court said that the “de minimis” doctrine is not part of California wage and hour Law.

The opinion arose from a federal case in which a class-action plaintiff claimed that nonmanagers were shortchanged for the time between when they clocked out and when they left the store. The evidence showed that, had the plaintiff been paid for this time, he would have earned an additional $102.67 over a 17-month period (or approximately 29¢ per workday). The federal court granted summary judgment for Starbucks based on the de minimis doctrine and plaintiff appealed to the Ninth Circuit. The Ninth Circuit asked the California Supreme Court to advise it as to whether California applied the de minimis doctrine to wage claims.

In today’s decision, the court answered the question in the negative, stating that there is no convincing evidence that California wage and hour laws incorporate the de minimis standard. That should be a surprise to the Division of Labor Standards Enforcement, whose Enforcement Policies and Interpretations Manual and opinion letters expressly adopted the standard. But the court explained that those aren’t binding. In knee-jerk fashion, the court again trotted out the principle that the Labor Code and wage orders must be construed liberally to protect employees and issued a unanimous opinion that should have plaintiffs’ class action lawyers celebrating all over the state. The court left open the possibility that there may be employee activities that are so brief or irregular that they don’t require compensation, but the four to ten minutes at issue in this case didn’t fit into that category.

What should employers do now?

1. Do everything possible to ensure that employees don’t clock out until they’ve completed all work-related tasks. This includes security checks, closing shop, and exiting the work premises.
2. If you use fixed time clocks, ensure that they are as close as possible to the exits. Or better yet, look at more advanced systems that employees can operate remotely, The court specifically referred to “advances in technology … shaping our understanding of what fractions of time can be reliably measured.”
3. Ensure that whatever policy you use to round off workers’ time entries is facially neutral (i.e., you’re just as likely to round up as to round down).
4. Require non-exempt employees to report any time they work after hours. Seemingly trivial tasks like checking e-mail or an online schedule could be compensable.
5. Train managers on how and when to communicate with non-exempt staff after hours.
6. If employees do after-hours work without authorization, discipline them, but pay for the time.
7. Stop being surprised when the California Supreme Court rejects seemingly well-established legal principles on the basis that it needs to protect the most thoroughly protected employees on the planet.

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