Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 71 minutes that the plaintiff worked each day were de minimis and thus not compensable. Starbucks noted that it would be administratively difficult to capture the time that the plaintiff spent exiting the store and locking up, because he had to first clock out on a computer terminal inside the store.412 Troester noted that the Labor Code and the Wage Orders often provide employees with a greater level of protection than federal law.413 Troester found that the requirement under the Labor Code and the Wage Orders that employees be paid for “all hours worked” was more protective than the FLSA, and thus ruled that “the California statues and Wage Orders have not adopted the federal de minimis doctrine.”414 Nonetheless, Troester left open the possibility that some narrower version of the doctrine might apply in wage and hour cases: [A]lthough California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law? We hold that the relevant Wage Order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work “off the clock” several minutes per shift. We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded . . .. We decline to decide whether a de minimis principle may ever apply to wage and hour claims given the wide range of scenarios in which this issue arises.415 The key to Troester’s ruling that the de minimis doctrine did not apply under the specific facts presented seems to be that Starbucks required the plaintiff to work several minutes of unpaid time every day. Troester noted that technological advances meant it was no longer administratively impracticable to account for this time.416 Concurring opinions by Justices Cuellar and Kruger, however, provided examples of unaccounted work time that should not be compensable, because they would be too irregular or too brief.417 In 2019, the Ninth Circuit dealt another blow to the application of the de minimis doctrine in Labor Code cases. Rodriguez v. Nike involved a certified class of over 10,000 current and former Nike employees who claimed that the company failed to pay them wages for time spent in exit inspections.418 The district court held that Nike had a valid business reason for not moving time clocks to the front of the store, and that capturing time in increments of seconds was impractical. The district court also held that Nike’s representative evidence showed that, even if an employee exits multiple times per day, the total amount of unpaid time is mere seconds, or a few minutes—well under the threshold of 10 minutes recognized by federal law applications of the de minimis doctrine. The district court also found that very few exits ever exceeded one minute, and thus were not “regular.” 412 Id. 413 Id. at 839-40. 414 Id. at 842. 415 Id. at 835, 843. 416 Id. at 846. 417 Id. at 848-56. 418 Rodriguez v. Nike Retail Servs., Inc., No. 14-CV-01508-BLF, 2017 WL 4005591, at *1 (N.D. Cal. Sept. 12, 2017).
RkJQdWJsaXNoZXIy OTkwMTQ4