Working for Justice

Unpaid Wages: Not a Trifling Matter

Posted December 11th, 2018 by Michael Palmer in Wages and Overtime Law.

“The law does not concern itself with trifles.” It’s one of those statements that sounds both reasonable and definitive. Indeed, it’s an English translation of a Latin maxim that traces back hundreds of years – “de minimis non curat lex.”

I was recently reflecting on this concept – sometimes called the “de minimis” doctrine – after reviewing a recent decision by the California Supreme Court, Troester v. Starbucks Corp., 5 Cal.5th 829 (2018). In that case, the Court rejected the application of the de minimis doctrine under California wage law, at least as the doctrine had been applied under federal wage law.

“Why?” you ask. Well, it comes down to what should be considered a “trifle.”

The de minimis doctrine was cemented in federal wage law in 1946 by the Supreme Court in a case called Anderson v. Mt. Clements Pottery Co., 328 U.S. 680 (1946). In a largely pro-employee decision concerning off-the-clock work, the Supreme Court recognized that employers are required to accurately track their employees’ hours worked, and it should be held against employers when they fail to do so. However, the Supreme Court threw employers a bone; citing to “the realities of the industrial world,” the Court suggested that a “de minimis rule” could be applied when the unpaid, pre-scheduled working time was “negligible.” Id. at 692. While the Supreme Court did not clearly define what would qualify as “negligible,” it suggested that where the issue is only “a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.” Id.

Federal courts later adopted the following test: “in determining whether otherwise compensable time is de minimis, we will consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984). While the determinations reached under this test have varied greatly, federal courts in some cases have concluded that ten minutes a day could be disregarded as de minimis, i.e. a “trifle.”

We can debate the justifications for disregarding small amounts of time worked in certain situations, but for many workers this time clearly is not a “trifle.” For example, as result of being denied wages for small periods of work over 17 months, the plaintiff in Troester was owed over $100, a significant sum for a low wage worker.

After considering the issue, the California Supreme Court recently concluded that California’s law requiring payment for all hours worked counseled against the adoption of the federal de minimis test. Troester, 5 Cal.5th at 847. The Court recognized that in some situations it may be difficult to track all hours worked; however, the employer – not the employee – should “bear the burden,” and “technological advances [e.g. tracking time on smartphones] may help with tracking small amount of time.” Id. at 846-848.

While the Troester decision only controls in California, one can hope that other courts consider its analysis of the de minimis doctrine in other wage and hour cases. Much has changed since the Supreme Court introduced the rule in Anderson, and with today’s technology, it is not administratively difficult to track hours worked. Further, what is a “trifle” to a multi-billion company may be very significant to a minimum wage worker.

If you haven’t been paid for all hours worked, you should consult with a lawyer to determine whether to bring a wage theft lawsuit. Sanford Heisler Sharp, LLP has experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.

Michael Palmer is a Partner in the New York office of Sanford Heisler Sharp. Mr. Palmer serves as Co-Chair of the Firm’s wage and hour practice and also has the expertise to represent individuals in False Claims Act and employment discrimination actions.
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