When Is Work-Related Time Too Minimal To Require Compensation?
It is clear that employees are required to be compensated for “all” work time. Sometimes, however, the time spent on the job is so minimal (or “de minimis”) that the time need not be compensated. Two recent court cases diverge, at least in part, and illustrate how difficult it is to determine when the time is so “de minimis” that the employer is relieved from its obligation to compensate the employee.
In a California case involving Nike retail stores, a class of hourly employees brought a lawsuit seeking to be paid for time after they had clocked out and during which their bags were inspected before they could leave the store. Nike moved to dismiss the complaint. The Company argued that the time spent on the exit inspections was “de minimis” and, therefore, not compensable as a matter of law. To support its motion, Nike utilized an expert who conducted a time survey and concluded that the average combined time of an exit inspection was only 18.5 seconds.
The court agreed with the Company and, in so doing, examined the following factors: (1) the practical administrative difficulty of compensating employees for such a small period of time; (2) the total amount of compensable time involved; and (3) the regularity of the “additional work.” The court concluded that, under prior case law, even ten minutes of additional time per day can be considered “de minimis.”
However, a recent ruling by the 10th Circuit Court of Appeals in Jimenez v Board of County Commissioners of Hidalgo illustrates the gray area of the “de minimis” doctrine. In that case, a 911 dispatcher coming onto her shift was regularly briefed by the outgoing dispatcher for five minutes in order to receive information about events that had transpired during the previous shift. The court noted that, per department policy, the employee was regularly required to receive the pre-shift briefing with reference to her job duties. Based on these facts, the court found that this pre-shift activity was measurable (i.e. five minutes per shift) and that it constituted a fixed or regular working time. Accordingly, this time could not be disregarded as “de minimis,” and the employee was entitled to compensation.
Together, these two cases stand for the proposition that the “de minimis” doctrine has no bright line rule. It is heavily fact-specific and has always been a gray area. In addition, the doctrine may have application to other compensability situations, such as hourly employees’ cell phone use for work purposes outside of the workplace or outside of working hours. Employers should simply be aware of the argument that, if the amount of time employees are seeking compensation for might be considered minimal, the “de minimis” doctrine may operate to relieve the employer from its obligation to compensate employees for that time.