Column: California Supreme Court has a radical idea: Employees should be paid for all their work time

“Take care of the pennies, and the dollars will take care of themselves” is a cherished old adage sometimes attributed (incorrectly) to that avatar of thrift, Ben Franklin.

When it comes to businesses paying wages, however, it’s been honored more often in the breach. But the California Supreme Court just called a halt to the practice of depriving workers of pay for work periods ostensibly too small to measure. Given existing technology, the court observed, the occasions in which that’s true are becoming too rare to count.

The court’s target is the ancient legal principle of “de minimis non curat lex” (“the law does not concern itself with trifles”), which means that sometimes legal matters are too trivial to warrant the judiciary’s time. In employment cases, the rule often has been applied to duties that take place before workers have clocked in or after they’ve clocked out, sometimes consuming a few seconds or minutes.

Federal law says these nuggets of time can go uncompensated. The California Supreme Court, in a 7-0 ruling issued Thursday in a case involving a Starbucks shift manager in the Burbank area, said that state law offers no such loophole. The worker, Douglas Troester, is seeking to bring a class-action case in federal court.

Troester said that Starbucks’ system required him to clock out before uploading the day’s sales records to the company’s central computers. Sometimes he had to spend post-clockout time bringing outdoor furniture into the store after locking up, or reopening the doors for a worker who had left something inside; these responsibilities could take up four to 10 minutes a day. (Starbucks didn’t dispute the calculation.) Over 17 months, Troester said, he worked 12 hours and 50 minutes of unpaid time, which would be worth $102.67 at the minimum wage in effect in 2008 and 2009.

“A few extra minutes of work each day can add up,” observed Justice Goodwin Liu, the ruling’s author. Of Torester’s unpaid wages, “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.”

He’s right, obviously — it’s not unusual for a business to stand its ground over a few dollars or even pennies of shortfall on a customer’s side — just try to get your credit card company to forego a late fee and heavy mulcting for interest if your bill payment is a day late.

What’s fascinating about the reaction to the court’s ruling is that it’s being seen in some quarters as a burden on employers in California, who could be subject to millions of dollars in damages. Overlooked in this argument is that the employers could have avoided the damages by paying the workers everything they were owed in the first place.

Liu further noted that the very concept of “de minimis” has to yield to the march of time and technology. In wage and hour cases, a federal court ruling in 1946 found that “split-second absurdities” didn’t have to be counted as work time if they were too short to register on time clocks of the era.

Time-clock technology has changed a lot in the intervening three-quarters of a century, of course. Smartphones and tablets today can allow employees to measure their work time, indeed, to the split second. In any case, Liu wrote, nothing dictates that “when it is difficult to keep track of time worked, the employee alone should bear the burden of that difficulty.”

Other advances have made Starbucks’ rule, which required the shift manager to clock out before uploading sales data, moot. As it happens, Starbucks changed its system after Troester sued, so that the manager can perform all those functions before clocking out.

What’s still uncertain is how the California court’s ruling will be applied at the federal level, where the important action in Troester’s case is happening. The California ruling was made at the request of the Ninth Circuit federal court of appeals, which asked the state court to advise whether the de minimis doctrine in the federal Fair Labor Standards Act exists in California law; its answer is no. That doesn’t mean that the federal judges won’t apply the doctrine in Troester’s lawsuit anyway. For now, however, the state Supreme Court’s ruling applies throughout California.

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