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Federal De Minimis Rule Does Not Apply To California State Wage and Hour Claims

The U.S. Court of Appeals for the Ninth Circuit recently held that the federal de minimis rule, which can be a defense to allegations of “trifling amounts” of off-the-clock work, does not apply to wage and hour claims brought pursuant to California state law.

The ruling arrived just shy of the one-year anniversary of Troester v. Starbucks Corp., in which the California Supreme Court held that the federal de minimis rule does not apply to California labor law and regulations. Notably, although the Ninth Circuit recognized that Troester declined to establish a bright-line California analogue to the federal de minimis rule, the court interpreted Troester as allowing parties to raise a de minimis defense to California state law claims under more narrow circumstances.

In Rodriguez v. Nike Retail Servs., on behalf of a class of employees working at the defendant’s California retail stores, the plaintiff brought a class action lawsuit under California law alleging that the defendant’s employees had improperly been required to perform uncompensated off-the-clock work in connection with post-shift security inspections.

The plaintiff initially filed in California state court, and the defendant removed to federal court under the Class Action Fairness Act. The district court granted summary judgment in the defendant’s favor, prior to the Troester decision. The district court found that the amount of time the class plaintiffs spent on off-the-clock work – somewhere between zero seconds and several minutes – fell within the federal de minimis rule range, and was thus non-compensable as a matter of law. The class plaintiffs appealed, and while the appeal was pending, the California Supreme Court issued its decision in Troester.

In granting summary judgment, the district court had relied upon the federal de minimis rule. The Ninth Circuit reversed, noting that the California Supreme Court expressly rejected the federal de minimis rule in Troester. The Ninth Circuit cited Troester’s reasoning that California labor laws are more protective than federal labor laws, specifically providing that employees must be paid for “all hours worked,” and that nothing in the California Labor Code incorporates the federal de minimis rule.

Based upon the Troester opinion’s “passing mention of ‘minutes,’” the defendant argued to the Ninth Circuit in support of a 60-second de minimis rule under California state law. While the court declined to construe Troester as the defendant argued, it did take a stab at construction of a California de minimis rule.

Relying on Troester, the court emphasized two considerations: the length of time allegedly worked by the employee off the clock, and the regularity with which the alleged off the clock work took place. Specifically, the Ninth Circuit stated, “we understand the rule in Troester as mandating compensation where employees are regularly required to work off the clock for more than ‘minute’ or ‘brief’ periods of time.” That is, employers need not “account for split-second absurdities,” nor situations where the work is so irregular that it would not be reasonable to expect that such time be recorded by the employer. Yet, “where employees are required to work for more than trifling amounts of time on a regular basis . . . Troester precludes an employer from raising a de minimis defense under California law.”

Rodriguez provides several important takeaways for employers, especially employers who operate in California or in multiple states. First, not all state wage and hour laws track the federal Fair Labor Standards Act. Thus, not all states recognize federal wage and hour defenses or otherwise limit or minimize such defenses. Second, while the Ninth Circuit recognized that the California Supreme Court declined to create a bright line California de minimis rule in Troester, by setting out its own test based upon the Troester decision, the Ninth Circuit seemed to implicitly recognize that California might recognize a de minimis rule in narrow circumstances. However, it remains to be seen how the district court will apply the Ninth Circuit’s California de minimis rule on remand.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 192


About this Author

Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of employment matters including wage and hour class and collective actions, as well as complex, multi-plaintiff and single plaintiff employment discrimination claims brought not only by private plaintiffs but also initiated by the Equal Employment Opportunity Commission (EEOC).

Mark has successfully represented companies of virtually all sizes, litigating matters across multiple areas of the law, from the pleading stage through appeal. He has also represented clients in arbitrations and before administrative bodies.

Mark vigilantly stays abreast of cases, laws, and trends that may impact his clients coming out of the courts, Congress and the state legislature, as well as the U.S. Department of Labor, the EEOC, and state regulatory agencies. He strives to keep a watchful eye on how labor and employment related laws are evolving so as to proactively advise clients.

In addition to his regular legal practice, Mark has undertaken several pro bono cases including trying criminal jury trials in state and federal court, and representing indigent plaintiffs in civil rights matters as part of the federal Trial Bar.

Mark began honing his litigation skill during law school when he interned at the U.S. Attorney’s office for the Northern District of Illinois, where he handled both civil and criminal issues. He also interned for a judge on the U.S. Court of Appeals for the Seventh Circuit, which gave him a unique vantage of seeing the issues from the court’s perspective.

John Kuenstler Employment Attorney Barnes & Thornburg

John dedicates his practice exclusively to the representation of employers in labor and employment and business matters. He counsels and represents a diverse client base on a national and regional basis in virtually all aspects of labor and employment law.

John’s experience includes the defense of single- and multi-plaintiff, collective and class action litigation pertaining to wrongful discharge, discrimination, sexual harassment, retaliation, Title VII, ADA, ADEA, Section 1981, FMLA, FLSA, ERISA, USERRA, WARN and OSHA claims before federal and state courts and administrative...