With briefs due next week, we anxiously await the California Supreme Court’s review of the de minimus doctrine. Under the doctrine, employers are not obligated to pay employees for small increments of off-the-clock time spent preparing for or ending a shift, provided such time amounted to approximately 10 minutes or less of work.
While we wait to hear the CA Supreme Court’s take on this, it’s worth noting that even under the FLSA, courts nationwide have had varied results on what constitutes non-compensable time under the de minimus doctrine. Many of the recent cases involve minimal time spent checking e-mails or texts that are work related. And while courts employ a fact-specific analysis of employment policies and practices, the following factors will weigh against a finding that the time is de minimus:
- If the time is a regular and necessary component of the work day or work week;
- Employer compulsion to complete the tasks at issue; and
- If the time can be recorded easily for payroll purposes
My colleague Mark Tabakman spoke about this topic today and offered the following advice to employers:
-Consider eliminating or limiting access to work-related email and systems for non-exempt workers during non-work hours
-Develop a comprehensive policy requiring non-exempt employees to record their after-hours time with a clear process for reporting such time
-Train managers on how and when to communicate with non-exempt staff after hours
-Pay for after-hours work performed, while utilizing disciplinary measures if the after-hours work was unauthorized
Until we have more consistent application from the courts, this issue continues to be a ticking time bomb for employers.