Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 205 rulings that the time spent to undergo certain bag checks while exiting a retail store was de minimis and thus not compensable . 93 But does the judicially created de minimis doctrine, originating in cases interpreting federal law, also apply in California? Although the DLSE and the Court of Appeal long acknowledged that the de minimis doctrine applies under California la w, 94 the California Supreme Court, in its 2018 Troester v. Starbucks Corp. decision , 95 c oncluded otherwise. The case came to the Supreme Court on a referral from the Ninth Circuit, which certified this question that the Supreme Court agreed to review: “Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 692 (1946) and Lindow v. United States , 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197? ” 96 Troester is another classic example of California public policy deviating from analogous federal policy, with the result that the California standard is more onerous on employers. Troester first held that California statutes and regulations have not adopted the federal de minimis doctrine. Troester emphasized that courts “liberally construe the Labor Code and wage orders to favor the protection of employees,” and that the California Supreme Court has “recognized the divergence between IWC wage orders and federal law, generally finding state law more protective than federal law. ” 97 Moreover, Troester held that although the de minimis doctrine exists as a general background principle, it would not apply to the facts at hand, where the employer required the employee to work off the clock several minutes per shift. Troester specifically declined to “decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded. ” 98 Meanwhile, Troester was generally skeptical of the de minimis doctrine: “one of the main impetuses behind the … doctrine in wage cases is ‘the practical administrative difficulty of recording small amounts of time for payroll purposes.’ … But employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring worktime. … [T]echnological advances may help with tracking small amounts of time. … [W]e decline to adopt a rule that would require the employee to bear the entire burden of any difficulty in recording regularly occurring worktime. ” 99 Making matters worse, a Ninth Circuit opinion applying Troester reversed summary judgment for a retail employer with respect to off-the-clock exit inspections, where the trial court had found that the unpaid exit delays were small, irregular, or administratively difficult to record (i.e., de minimis ). The Ninth Circuit rejected the employer’s argument that the exit delays were de minimis even under Troester . The Ninth Circuit interpreted Troester to mandate pay where “employees are regularly required to work off the clock” for times that are more than “minute,” “brief,” or “trifling,” and rejected the employer’s argument that there should be a 60-second threshold, by which otherwise compensable periods as long as 59 seconds could be disregarded . 100 7.4.4 “Rounding” Both federal law and state law permit employers to compute employee work time by using a rounding method, “provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. ” 101 A California trial court, however, held that rounding was unlawful and granted summary judgment to the plaintiffs, on a rationale that California law does not authorize paying on the basis of anything other than strict time reporting. The Court of Appeal then corrected this mistake, holding that California law should follow federal law in this instanc e. 102