Last week, the Supreme Court held that in California, employers must pay for "any" and "all" time their employees work, and they cannot escape this obligation by claiming that the time is "de minimis." Troester v. Starbucks Corp., ___ Cal.5th ___ (July 26, 2018). (Scott Leviant has more on the wage and hour aspects of the decision. Copies of the briefs, including the amicus brief I co-wrote with Ari Stiller for CAOC and CELA, are available here.)
In the 1940s, the U.S. Supreme Court suggested that a "de minimis" defense to FLSA wage claims might exist under federal law, but 70 years later, the California Supreme Court found the reasoning behind those comments outdated. For one thing, the 1960s saw the advent of the class action:
Two additional considerations reinforce our reluctance to fully adopt Anderson's reasoning as a matter of state law. First, the modern availability of class action lawsuits undermines to some extent the rationale behind a de minimis rule with respect to wage and hour actions. The very premise of such suits is that small individual recoveries worthy of neither the plaintiff’s nor the court’s time can be aggregated to vindicate an important public policy. As we explained in Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, a class action suit involving a 4 cents per gallon surcharge on gasoline customers using credit cards: “Setting aside the fact that class members who were repeat customers might be entitled to recover far more than the minimal 80-cent damage figure noted by the trial court, it is firmly established that the benefits of certification are not measured by reference to individual recoveries alone. Not only do class actions offer consumers a means of recovery for modest individual damages, but such actions often produce ‘several salutary by-products, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims.’ ” (Id. at p. 445.) As one Court of Appeal observed in a case involving alleged fraudulent practices against consumers, “[i]n this age of the consumer class action this maxim [de minimis non curat lex] usually has little value.” (Harris v. Time, Inc. (1987) 191 Cal.App.3d 449, 458.) The same is true of employee class actions.
Slip op. at 17-18 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)). For another, timekeeping technology is far more advanced now than it was in the 1940s:
Second, many of the problems in recording employee work time discussed in Anderson 70 years ago, when time was often kept by punching a clock, may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices. We are reluctant to adopt a rule purportedly grounded in “the realities of the industrial world” (Anderson, supra, 328 U.S. at p. 692) when those realities have been materially altered in subsequent decades.
Id. at 18. And what some employers might want to call "de minimis" is really not for many workers:
An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine. As the facts here demonstrate, a few extra minutes of work each day can add up. According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to $102.67 at a wage of $8 per hour. That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.
Id. at 19-20.
