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The Fair Labor Standards Act (“FLSA”) requires employers to adhere to the federal minimum wage and overtime requirements when compensating employees for all “hours worked.” Federal courts recognize and apply an exception known as the de minimis doctrine to disregard insubstantial amounts of time. The de minimis doctrine excuses employers from compensating employees for trivial amounts of time spent on off-the-clock work activities, such as waiting to log onto a computer, passing through a security check, and activating an alarm. Under the de minimis doctrine, employees cannot receive compensation for a few seconds or minutes that occurred outside scheduled working hours. States, however, have their own wage orders and labor codes that provide greater protections to employees that go beyond the FLSA requirements. Thus, the application of the de minimis doctrine to off-the-clock claims brought under the FLSA is different than the doctrine’s application to claims brought under state wage and hour laws. No state has explicitly refused to apply the de minimis doctrine in state wage and hour claims, other than California. Regardless of whether California explicitly adopted the de minimis doctrine in its respective wage orders and labor codes, California should have applied the de minimis doctrine to off-the-clock state wage and hour claims. The doctrine’s policy interests warrant its adoption and use in state wage and hour law and rejecting the de minimis doctrine only burdens employers to record insignificant amounts of time that are administratively difficult to capture.

fiu law review

Just A Minute, Isn’t That De Minimis: California Should Not Burden or Require National Employers to Compensate Employees for De Minimis Off-the-Clock Work Activities