State high court hears argument over off-the-clock minutes

Attorneys for Starbucks Corp. and a former manager argued before the state Supreme Court on Tuesday over whether California wage law should import a federal doctrine that sets a minimum for compensable off-the-clock minutes.

The plaintiff, a former Starbucks manager, claims he regularly spent four to 10 minutes at the end of shifts over his 17-month employment closing down the shop after he clocked out. His attorneys have argued that California's Labor Code plainly states that all off-the-clock work must be compensated. Troester et al., v. Starbucks Corporation, et al., S234969.

Starbucks' attorneys argued that the minutes involved fall under the federal de minimis defense laid down in Anderson v. Mt. Clements Pottery Co., 328 U.S. 680 (1946).

That 72-year-old decision said that such small pieces of time are impractical to track, but part of the plaintiff's argument is that the standard is outdated, since technology now makes tracking small increments of time practicable..

In his arguments for the plaintiff, Stanley D. Saltzman of Marlin & Saltzman LLP focused on incompatibility between the federal rule and California law.

"Administrative practicality may be an acceptable excuse in federal law, but we've never accepted that [in California] and you're being essentially asked to legislate that in from this bench," he said.

"This case is about clarity, predictability in the workplace, and it is about the law as it applies to all the employees in the state and are they protected for all time worked," he said.

Arguing for Starbucks, Rex S. Heinke of Akin Gump Strauss Hauer & Feld LLP said that the de minimis doctrine provides a reasonable limit to the time a company can be expected to track, and that a decision in favor of Troester would open the floodgates for litigation over time periods down to seconds.

He also argued that the key factor for the plaintiff is not the unpaid wages, but the statutory damages companies are responsible for on a per-violation basis under the Labor Code.

"This case really is not about the relatively small amount of wages that they're contesting. It's about all the other things. That's what drives this litigation. If the plaintiffs are right, every employer in this state is going to be sued for every second they claim they did not get paid for," Heinke said.

Justice Mariano-Florentino Cuéllar asked Saltzman to respond to Heinke's claim the plaintiff's real objective is statutory damages.

"This case is about time worked," Saltzman answered.

Several justices pressed Saltzman on where the line would be drawn on tracking small amounts of time and expressed concern over litigating "nanoseconds."

Saltzman insisted that the law clearly says all time that can possibly be counted must be tracked and compensated so long as the employee is performing required tasks.

"The IWC has been clear. Pay for all time worked," he said. "It's not like Starbucks doesn't know they are spending this time; they're required to do it."

Cuéllar also asked Heinke why the close-down tasks needed to be performed off the clock at all, or why Starbucks had not addressed the matter before being sued.

"I don't understand why this is so hard. It seems like there's a lot of ways to skin that cat," Cuéllar said.

"Their system did not allow you to do it any other way," Heinke said.

According to court documents, Starbucks no longer requires that store closings be done after clocking out.

Heinke said that every case decided at state or federal levels has upheld the de minimis standard, and that the court has the flexibility to blend it into California law.

"I do not believe there's some great difference between federal and state law on this point," he said. "Anderson got it right. Common sense needs to prevail and there needs to be a little flexibility in the system."