Even Minutes Of Work Time Ruled Compensable In California

GREGG ADAM
Founding Partner
TEAL MILLER
Associate Attorney
Messing Adam & Jasmine LLP

Your work time matters and, under a new California Supreme Court ruling, must be compensated — even if it amounts to relatively small periods of time. The July 26 ruling in Troester v. Starbucks Corp. (July 26, 2018, 18 Cal. Daily Op. Serv. 7383) rejected a principle of federal law that held that employers need not compensate employees for so-called de minimis time — a few minutes here, a few minutes there, typically at the beginning and end of the workday.

The case was brought by Douglas Troester, a nonexempt Starbucks shift supervisor, who was required to complete tasks after he clocked out at the end of his shift. He had to initiate the closing procedures on the store computer, set the alarm, exit and lock the door and ensure that his co-workers reached their cars safely or wait with them until their rides arrived. This additional work took only four to 10 minutes each day. Starbucks argued that this unpaid time was so trivial that it should not be required to pay him.

Starbucks’ argument may have carried the day had Troester sued under federal law only. However, he also included causes of action under California’s wage and hour laws. Troester lost in the federal district court, but on appeal to the Ninth Circuit, the federal appellate court concluded that the question of whether California law recognized a de minimis exception to what is compensable time had not yet been determined. Thus, it asked the California Supreme Court to address the issue.

In recent years, in a series of cases stretching back to a decision called Morillion v. Royal Packaging Co. (2000) 22 Cal.4th 575, the California Supreme Court has repeatedly ruled that California law, through both the California Labor Code and Wage Orders promulgated by the now-defunct Industrial Welfare Commission, provides far greater protection to workers than does the federal Fair Labor Standards Act. For example, the Court has concluded that the federal Portal-to-Portal Act (which generally makes travel time to and from work noncompensable) does not apply under California law. It has also rejected the federal “averaging” method of calculating minimum wages (whereby a federal minimum wage violation is established only where employees’ total wages over an entire work period [e.g., 40-hour workweek or up to 171 hours in 28 days] fall below the federal minimum) in favor of an approach whereby every hour, or fraction thereof, must be compensated without regard to compensation for other periods of time.

In Troester, the California Supreme Court continued its broadly protective interpretation of California law, ruling that, at least on facts involving measurable time, there is no de minimis rule under California law and Starbucks owes Troester compensation for the time spent performing his closing duties after his shift had ended. This decision opens the door for California employees, like Troester, who are not compensated for job duties performed either before or after their shifts, to sue their employers for back pay.

The Supreme Court put forward several notable points in its reasoning. First, the amount in controversy from Troester’s 15 months of employment, $102.67, may be small but it is a significant amount for “many ordinary people who work for hourly wages.” According to the Court, it is “enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares.” Second, while it may be administratively difficult to record small amounts of time for payroll purposes, “employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring work time.” Such alternatives would likely rely on technological advances that are customizable to track even small amounts of employee time. Third, the Court leaves open an avenue for employers to escape liability for such small amounts of unpaid time off the clock that are “so irregular or brief” that there is no practicable way for the employee to record this time. But it is the employer’s burden to prove that there is no such way to record it.

Why Is Troester Important to California Peace Officers?

It provides a far better avenue to pursue claims for uncompensated time than does federal law. With the caveat that California’s statutory overtime laws do not apply to public employees, creative use of California’s minimum wage laws that do apply to public employees, allied with contractual rights, can provide peace officers with renewed avenues to pursue off-the-clock claims that may have seemed dead after the federal Ninth Circuit Court of Appeals shot a hole in the stern of federal donning-and-doffing claims in Bamonte v. City of Mesa (2010) 598 F. 3d 1217. Particularly in an age when employees log in to computer terminals or are tracked upon entering a police station, employers must assess employees’ compensable work time on an individualized basis. Employees should consult with legal counsel if they believe they have uncompensated work time.

More litigation over compensable time seems likely to result from this decision. In the short term, however, three actions come to mind: 1) seek to eliminate employer policies that measure overtime in minimal increments of 15 minutes (these seem dubious, if not flat-out illegal, under Troester); 2) ensure that contractual overtime provisions measure “time worked” under California law standards; and 3) press employers on what steps they are taking to ensure that all compensable time is being measured.

All three of these suggestions highlight the continuing importance of your union in a post-Janus world. Peace officer compensation, and the laws governing it, are increasingly sophisticated. Having a strong union advocating for you and protecting you is more critical than ever.

Finally, this is not the California Supreme Court’s last word on the subject. Two other California minimum wage cases are currently before it. In Frlekin v. Apple, No. 15-17382 (9th Cir. 2017), Apple employees are suing to be compensated for time spent waiting to be searched and being searched, before they leave their workplace. And in Stoetzl v. State of California (2017) 14 Cal.App.5th 1256, a large class of correctional peace officers represented by our law firm is suing to confirm that California minimum wage standards apply to state employees and to time spent in correctional facilities under their employer’s control.

Fortunately for employees in California, at a time when the federal government is advocating vigorously to reduce federal protections for employees, state law provides a better means to protect your right to compensation.

About the Authors

Gregg Adam is a partner and Teal Miller is an associate at Messing Adam & Jasmine, a PORAC-LDF panel attorney firm that represents public-safety officers employed by state and local municipalities.