Starbucks asks state high court to revisit de minimis time

Starbucks attorneys have asked that the state Supreme Court allow for minimum paid off-clock minutes where the work is rare or irregular, restructuring a decision where the court ruled there is no minimum for regular work.

On July 27, the court decided unanimously in Troester et al. v. Starbucks Corporation et al., 2018 DJDAR 7361, that the so-called federal 'de minimis' rule, which sets a minimum for compensable off-clock time, is not applicable under California law.

However, the opinion was carefully written to say there is no such defense in California and that the time in Troester is compensable. It specifically declined to say whether such a defense would apply under different circumstances, such as irregular minute tasks.

The plaintiff, a former Starbucks manager, sued the company for not compensating four to 10 minutes he claimed he spent outside of clocked hours closing down the shop. His attorneys argued California's Labor Code states all work must be compensated.

"We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded," wrote Justice Mariano-Florentino Cuéllar in his concurring opinion.

In the petition for rehearing, Starbucks attorney Rex S. Heinke of Akin Gump Strauss Hauer & Feld LLP wrote that the decision's wording could be interpreted as rejecting 'de minimis' entirely.

Heinke reasoned the court's declaration that all work in Troester was compensable captures his irregular tasks, obfuscating the opinion's narrow intent and leading courts to reject all de minimis defenses out of hand.

"Because the court apparently does not intend to require such a result, it should modify the last paragraph of its opinion to clarify that its holding extends only to the tasks Troester performed on a daily basis," he wrote.

Heinke declined to comment on the petition.

Stanley D. Saltzman of Marlin & Saltzman LLP, who argued for the plaintiff, said the petition's "irregular work" refers to time waiting for co-workers to get to their cars after clocking out or taking patio furniture inside the store before locking up.

"It is noteworthy to us that rather than just dealing with the reality that it will not be required to pay for the previously unpaid time spent by its employees working for it, that Starbucks is actually now stooping so low as to try to siphon off the right to not pay for part of that time," he said.

"There is no policy reason that would permit an employer not to pay for what might be considered less regular time worked by its employees, when it is clearly measurable and quantifiable."

The issue of measurability featured heavily in Troester as 'de minimis' was laid down in a 72-year-old case that relied on the impossibility of tracking small increments of time when it was decided.

Saltzman reiterated that a plain reading of the Labor Code says all time must be compensated and said the petition is "of little import in the big picture but is not worthy of being considered by the court."

James M. Finberg of Altshuler Berzon LLP, who is not involved in the case, said the court's opinion leaves little expectation for success for the petition. The opinion also rejects the Lindow de minimis standard, which relies on recording difficulty, regularity, and size of off-clock time, prescribing a general rule of 10 minutes or less. The em> Lindow test has been applied by a number of federal circuits nationwide.

"Given that, and given that the California Supreme Court's opinion was unanimous, it is likely that Starbuck's petition will be denied," he said.

Charles O. Thompson of Polisnelli LLP said the opinion needs maximum clarity to prevent unintended fallout.

"The court should endeavor to be as specific as possible in its intent on what is de minimus, or class action exposure will be wide open for small and mid-size business in this state, which it cannot afford. The court will be turning off the lights and closing the door for many employees in California," he said.

Hours after the petition was filed, the court extended the deadline for its decision on rehearing to Oct. 24.