Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 89 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.439 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.440 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.441 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.” The California Supreme Court’s Troester decision was issued while the plaintiff’s appeal in Rodriguez was pending. Ultimately, the Ninth Circuit reversed the district court’s grant of summary judgment in favor of Nike.442 In doing so, the Ninth Circuit rejected Nike’s argument that, as 69% of inspections took less than 15 seconds, and only 3.3% of exit inspections lasted more than a minute, the time employees spent being inspected was de minimis.443 Instead, the Ninth Circuit focused on the frequency of the exit inspections, rather than their length, noting the inspections were not “so irregular that it is unreasonable to expect the time to be recorded.”444 While the de minimis doctrine is not dead in California, its applicability has been substantially limited. In contrast to the doctrine applicable to FLSA claims, the Ninth Circuit has appeared to switch the focus from the amount of uncompensated time to the frequency an employee experiences uncompensated time, regardless of how brief that time may be. As a result, any activities performed regularly, such as security checks or close-down procedures, will likely be subject to class claims if those activities are unpaid. F. Computer Bootup Time is Compensable Under FLSA In 2022, the Ninth Circuit dealt employers another blow in connection with the ever-expanding definition of “compensable time” when it issued its holding in Cadena v. Customer Connexx.445 In Cadena, the Ninth Circuit 439 Id. at 846. 440 Id. at 848-56. 441 Rodriguez v. Nike Retail Servs., Inc., No. 14-CV-01508-BLF, 2017 WL 4005591, at *1 (N.D. Cal. Sept. 12, 2017). 442 Rodriguez v. Nike, 928 F.3d 810 (9th Cir. 2019). 443 Id. at 817. 444 Id. at 818. 445 51 F.4th 831 (9th Cir 2022).
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