Understanding the de minimis Rule

Posted on October 1, 2018 by Rick Rossignol

Lawyer in office with gavel

It’s a blurry line: when can certain work tasks be considered de minimis? When an employee clocks out but continues to complete work-related tasks should they be paid for their unmarked time? What about when you call an employee while they are on vacation? RTR Consulting demystifies the de minimis rule by clarifying what California employers can do to protect their business.

What is de minimis?

When an employee spends a few extra minutes doing work when they are considered “off the clock”, it is called de minimis work. Federal wage rules do not require employers to pay their employees for these small and regular tasks. For instance, when an employee locks the doors of a store for the night, they are already clocked out when they complete the task and are regularly not paid for this recurring task. The California Supreme Court decided this would no longer be the case for California wage laws.

This type of work is especially relevant for companies that have employees who clock in and out or log their own time, but it also applies to businesses where the employer decides to call an employee while they are using a vacation day. That day is no longer considered vacation and the employee must be paid for their time.

What are the new laws?

The California Supreme Court issued their opinion on the Troester v. Starbucks Corp. case on July 26, 2018. The de minimis doctrine does not apply in California law to protect employers from paying their employees for regular duties that are performed off the clock. These are typically small and predictable tasks that are easy to determine. The premise of the case is that the 4-5 minutes of work completing these tasks is not de minimis because if an employer is allowing an employee to work, then they should be paid.

The court wanted to determine what was appropriate in the workplace rather than simply denying employees their rights. It is pivotal to comply with new legislation and implement effective HR policies and produces.

What are the employer challenges?

Being unable to use the de minimis concept in California creates deeper issues and challenges for employers. Unless your business wants to accept having to pay for or reconcile the time you took away from your employee while they were on vacation or the other tasks they completed on unlogged time, then you must make adjustments.

As an employer, you should take a look at your current practices and rules regardless of the types of employees you hire, as this will affect salaried employees as well. What is in your employee handbook? Does it address de minimis work at all? It is crucial to develop a rule that clearly spells out what employers and employees can do. For instance, this may be as simple as developing a rule that states employers cannot call, text, or email employees while they are on vacation or out of the office.

How do you prepare for de minimis?

For California employers, it is important to review your current employment and timekeeping practices. Determine how you can make changes based on the ruling and if you can alter your process to ensure it is in accordance with the law.

Our HR experts have taken the time to understand the complex and difficult language of the law as well as the implications it has on your business. RTR Consulting has more than 20 years devoted to developing effective and efficient Human Resources policies, procedures, and best practices for small to medium-sized businesses. Contact us today to learn more.

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