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Federal court to apply Troester to Nike employee inspection times

It is well known that California state labor and employment laws tend to be more pro-employee than corresponding federal laws. Therefore, it may come as no surprise that if you make your employees stand in line before they leave so you can inspect their bags to ensure they didn't make off with your merchandise - such as some shiny new Nike Air Force 1's - you must pay them for this time in California. As we previously explained in this space, the California Supreme Court held last summer in a unanimous opinion called Troester v. Starbucks that in a wage and hour complaint under California state law, the federal de minimis doctrine does not apply.

The Troester ruling and the de minimis doctrine

The issue in Troester was whether a California employer must pay an employee for time spent performing very brief tasks while off the clock. The Supreme Court said that the federal de minimis doctrine, which allows employers to not pay wages for extremely short periods of time spent performing work duties off the clock, does not apply to similar issues under California state wage and hour laws.

The state Supreme Court, said, in essence, that California law strictly requires payment for all time worked, a concept inconsistent with federal law allowing nonpayment for very short periods of work.

The Court, however, declined to say that there would never be a situation where some kind of state-law-based de minimis standard might apply to state law claims. The court said it was not deciding "whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded."

It continued that an employer could not avoid paying employees who work "minutes off the clock on a regular basis" by using some type of de minimis argument. An employer could come up with some way to measure such time, including restructuring those duties to have workers perform them while signed in or even to use reasonable estimates of those times for payment purposes.

Ninth Circuit sends back new case under Troester

On June 28, 2019, this issue came up again in Rodriguez v. Nike Retail Services, Inc. before the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit sent the case back to the federal trial court to apply the Troester case in the context of off-the-clock employee inspections as they left the work premises in Nike stores.

The Ninth Circuit said that the trial court had improperly applied the federal de minimis standard and wrongly granted summary judgment where there were evidentiary inconsistencies at the trial level to resolve there.

The Ninth Circuit's opinion in Rodriguez noted that Troester requires compensation if an employee regularly must work outside of tracked work time for longer than "minute" or "brief" times. But, if off-clock work is so "irregular" that it would not be reasonable to record it or such work is only for a "split-second," pay would not be required.

Our law firm will watch these developments closely on behalf of our employer clients as courts continue to refine what California state law requires in these instances.

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