Quirky Question # 224, The De Minimis Defense to Off the Clock Work Claims


We have an employee who is claiming that he should be paid for time cleaning up his work station after logging out of our electronic time keeping system each night.  Literally, he spends one or two minutes straightening his piles of paper and on other trivial similar tasks.  Another company HR representative said that every minute an employee spends on any tasks must be paid for.  We have offices on the West Coast including California.  Do we really have to pay him for this time?

Answer:  By David Murphy and Gabrielle Wirth

David Murphy

David Murphy

Gabrielle Wirth

Gabrielle Wirth

First, let’s talk about the law in the Ninth Circuit, which governs the West Coast, and California.  Last month, in Troester v. Starbucks, the federal court for the Central District of California applied the de minimis test set forth in an older case, Lindow v. United States 738 F. 2d 1057 (9th Cir. 1984). Plaintiff was a barista who closed up the Starbucks’ store.  He argued that he was not compensated for time he spent closing the store, pursuant to the company’s specific closing procedures, after he had logged out of the store’s computer system.  He alleged that after clocking out, he had to activate the alarm and then walk out and lock the store door. Pursuant to Starbucks’ safety guidelines, he often also walked employees to their cars. On occasions he let forgetful employees back into the store to retrieve possessions, and occasionally, he reorganized furniture on the outside patio.

Citing case law and the California DLSE Enforcement Manual 46.6.4, the Court found that this “alleged working time need not be paid if it is trivially small: A few seconds or minutes of work beyond scheduled working hours may be disregarded.”  It therefore found the barista’s time spent after clocking out too minimal to be compensable.

In reaching its decision, the Court followed Lindow. The Court explained that to determine whether work time is de minimis, a court must consider: “(1) the practical administrative difficulty in recording such time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.  The undisputed facts showed that on average Plaintiff activated the alarm approximately one minute after he logged out and 90% of the time he activated the alarm within two minutes.  Plaintiff then spent thirty seconds to walk out of the store (and the alarm would trigger if it took longer than one minute).

The first Lindow factor was clearly met, as a practical matter, the timekeeping system had to be turned off to close the store.  It was not feasible to capture the time spent after shutting down the computer system since the alarm activated within one minute and would be triggered if the employers did not immediately exit the store.  Thus, there would be literally no time to sign out or otherwise record the minutes.

As to the second Lindow factor, the aggregate amount of time between signing off the computer system and leaving the store was usually one minute and often less than four minutes and rarely more than ten minutes.  The court noted that these times were far less than in other cases where ten minutes of additional time was considered to be de minimis and thus not compensable.

Finally, as to the third Lindow factor, the court found that plaintiff did not always close the store and thus did not work these extra minutes on every shift.  The court therefore upheld Starbucks’ de minimis defense explaining: “It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”  The court concluded that the few minutes that plaintiff spent closing the store at the end of his shift were “far from substantial and fall well within the 10 minute de minimis benchmark.”

While California state courts might scrutinize this defense a little more rigorously, the cases are suggesting that cautious employers can rely on this defense.  As a practical matter, this case teaches an employer to analyze whether there are any activities which must be performed before or after an employee clocks in or out.  In your situation, it is unclear that the time the employee is spending is even necessary but it is clear that these activities can be performed while he is still clocked in.  The employee could straighten his desk in the morning after logging onto the timekeeping system or prior to logging out.  If your employee’s argument is that he performs these activities while he is waiting for his computer to shut down, there may be software solutions which can make it unnecessary for him to wait until the computer shuts down.  The key to defending such a claim is to eliminate any necessary work off the clock as much as possible.

Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience in a broad range of employment disputes includes wage and hour, whistleblower, wrongful termination, discrimination, harassment, retaliation, breach of contract, and trade secret/noncompetition cases. She also represents employers before a wide variety of state and federal agencies including the EEOC, OFCCP, state human rights agencies, the Labor Commission, the Employment Development Department and OSHA.

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