The California Supreme Court recently ruled against Starbucks regarding its practice of not paying employees for alleged “de minimis” work performed after clocking out. Starbucks had a practice of having their employees perform certain administrative and clean up duties after “clocking out” for the day. The effect was that the employees were not paid for this time. Allegedly, Starbucks thought it was okay because this was not a lot of money at issue (i.e. “de minimis“). Quoting from the opinion, “The de minimis doctrine is an application of the maxim de minimis non curat lex, which means ‘[t]he law does not concern itself with trifles.'” Here, though, the California Supreme Court did not view this as a trifle.

The California Supreme Court held that:

(1) California statutes and wage orders have not incorporated the Federal “de minimis doctrine” and
(2) California’s general background de minimis principle is not applicable here

Quoting Justice Liu:

“What Starbucks calls de minimis is not de minimis at all to many ordinary people who work for hourly wages.”

Applying the Starbucks Decision:

Our view is that in this context, “de minimis” is probably dead, so reliance on that concept for justifying post-closing, or pre-opening work “off-the-clock” is misplaced. Perhaps it was not previously, but things change. As Justice Liu wrote in his concluding paragraph of his opinion “The relevant statutes and wage order do not allow employers to require employees to routinely work for minutes off-the clock without compensation.”

How Do You Manage the Risk?:

Business and life is about risks, mitigating risks and managing risks. Litigation from arising from failing to fully pay employees is one of those risks, and it is significant. The first approach a company can take is to have employees perform all duties on the clock, and document that requirement in your policies and procedures. If you need an up to date California employer handbook, we can do that for you.

The second approach would be to test the boundaries of the word “routinely” and permit off the clock once in while, after running through the test with your legal counsel, and with full appreciation of the risks. We don’t advise this approach, but merely recognize that some could read the opinion that way.

About Adishian Law Group, P.C. Adishian Law Group (http://www.AdishianLaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services.   As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

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