In Troester v. Starbucks Corporation, the Supreme Court today holds that, unlike federal law, California law does not generally “excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.” [Disclosure: Horvitz & Levy filed an amicus brief in this case.]
Responding to a Ninth Circuit request, the court’s unanimous opinion by Justice Goodwin Liu concludes that “the relevant [California] wage order and statutes do not permit application of the [federal] de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work ‘off the clock’ several minutes per shift.” In the case before the court, the plaintiff had less than 13 hours of unpaid time over a 17-month period, equaling about $103 in unpaid wages.
The court expressly does not decide, however, “whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.” But it said it would not “adopt a rule that would require the employee to bear the entire burden of any difficulty in recording regularly occurring work time.”
Although signing the court’s opinion, Justices Mariano-Florentino Cuéllar and Leondra Kruger write separate concurrences. (Pro tem Justice Elizabeth Grimes signs Justice Kruger’s opinion.) Both address the question the court’s opinion leaves open. Justice Cuéllar says “there is room for a rule of reason to avoid a situation forcing employers to monitor every fraction of every second of employee time.” With another notably turned phrase, he writes of the need to avoid “building a rickety skyscraper on a muddy swamp by relying on an administrability rationale too precarious to offer much meaningful analytical structure to a rule of reason, given the evolving technological fabric of modern life.” Justice Kruger similarly states that “[a] sensible application of our law does not encompass claims for negligible periods of time that cannot reasonably be measured or estimated with a fair degree of accuracy” and that “a properly limited rule of reason does have a place in California labor law.” She also offers a few scenarios where a rule of reason would apply to excuse wage payment.