Troester v. Starbucks Corp.

Second, does the de minimis principle, which has operated in California in various contexts, apply to wage and hour claims? In other words, although California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law? We hold that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work "off the clock" several minutes per shift. 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.

The factual background, as recounted in the Ninth Circuit's request for certification unless otherwise indicated, is as follows: On August 6, 2012, plaintiff Douglas Troester filed the original complaint in an action in Los Angeles County Superior Court on behalf of himself and a putative class of all nonmanagerial California employees of defendant Starbucks Corporation (Starbucks) who performed store closing tasks from mid-2009 to October 2010. Troester worked for Starbucks as a shift supervisor. Starbucks removed the action to federal district court and moved for summary judgment on the ground that Troester's uncompensated time was so minimal that Starbucks was not required to compensate him.

Troester submitted evidence that during the alleged class period, Starbucks's computer software required him to clock out on every closing shift before initiating the software's "close store procedure" on a separate computer terminal in the back office. The close store procedure transmitted daily sales,

On appeal, the Ninth Circuit recognized that although the de minimis doctrine has long been a part of the FLSA, this court has never addressed whether the doctrine applies to wage claims brought under California law. The court further recognized that in some instances California law has been interpreted to be more protective of employee wage claims than federal law. Against this background, the Ninth Circuit certified the question presented to this court.

In 1961, the de minimis doctrine was codified as a federal regulation with a proviso that the doctrine was to be applied sparingly and not arbitrarily: "In recording working time under the FLSA, insubstantial or insignificant

In order to determine whether California has adopted the federal de minimis rules, we first observe that IWC wage order No. 5-2001 (Wage Order No. 5) concerning the "public housekeeping industry" includes establishments such as Starbucks that provide food and beverages. (See Wage Order No. 5, subd. 2(P).) Subdivision 2(K) defines hours worked as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so ...." As case law has clarified, the time during which " 'the employee is suffered or permitted to work' " encompasses the time during which the employer knew or should have known that the employee was working on its behalf. ( Morillion , supra , 22 Cal.4th at p. 585, 94 Cal.Rptr.2d 3 , 995 P.2d 139 .) Subdivision 4(A) of Wage Order No. 5 sets the minimum wage

We recognize that the de minimis doctrine appears in the Enforcement Policies and Interpretations Manual published by the Division of Labor Standards Enforcement (DLSE Manual). Sections 47.2.1 and 47.2.1.1 of the manual adopt virtually verbatim the federal regulation on this issue. (DLSE Manual (2002 update) p. 47-1; see 29 C.F.R. § 785.47 (2018).) But unlike wage orders, the DLSE Manual is not binding on this court. ( Mendiola , supra , 60 Cal.4th at p. 848, 182 Cal.Rptr.3d 124 , 340 P.3d 355 .) Although statements in the policy manual may be considered for their persuasive value, the DLSE Manual contains rules that have not been subject to the Administrative Procedures Act and do not represent an exercise of quasi-legislative authority by an administrative agency. (See Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542 , 555-561, 229 Cal.Rptr.3d 347 , 411 P.3d 528 ; DLSE Manual at pp. 1-1 to 1-2.)

The DLSE has also issued opinion letters adopting the Lindow test for the de minimis rule. (See Dept. of Industrial Relations, DLSE Opn. Letter No. 1988.05.16 (1988).) Such advisory opinions are also not binding, although they may be a source of informed judgment to which courts and litigants may resort for guidance. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1 , 14, 78 Cal.Rptr.2d 1 , 960 P.2d 1031 .) Here, the DLSE's adoption of the federal de minimus rule appears to be based on the general proposition that federal case law construing the FLSA "may sometimes

We have recognized that the maxim de minimis non curat lex is "of ancient origin" and may be incorporated by implication into the state's statutory and constitutional enactments. ( Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468 , 514, 101 Cal.Rptr.2d 470 , 12 P.3d 720 [recognizing the incorporation of that principle into the free speech clause of the California Constitution].) This principle is among the maxims of jurisprudence codified in the California Civil Code. ( Civ. Code, § 3533 ["The law disregards trifles."].) The rule originated as one of the maxims of equity formulated by English Courts of Chancery. (See Nemerofsky, What Is a "Trifle" Anyway? (2001-2002) 37 Gonz. L.Rev. 315 , 322-323.) "The function of the 'de minimis' doctrine ... is to place 'outside the scope of legal relief the sorts of intangible injuries,

The de minimis rule, as a background principle, has been invoked in a variety of statutory contexts, and courts have decided such cases by examining whether application of the rule would be consistent with the statutory purpose. (See Goehring v. Chapman University (2004) 121 Cal.App.4th 353 , 384, 17 Cal.Rptr.3d 39 ["Substantial compliance with a statute 'will suffice if the purpose of the statute is satisfied ... but substantial

In support of its position, Starbucks cites See's Candy 's reliance on federal law and the DLSE Manual, and its rejection of arguments similar to Troester's contention that the policy is barred by statutes requiring payment to the employer of all wages. But critically, See's Candy rested its holding on its determination that the rounding policy was consistent with the core statutory and regulatory purpose that employees be paid for all time worked. Starbucks argues for a departure from that principle, and we conclude no such departure is warranted in this case.

The de minimis doctrine is an application of the maxim de minimis non curat lex , which means "[t]he law does not concern itself with trifles." (Black's Law Dict. (10th ed. 2014) p. 524.) Federal courts have applied the doctrine in some circumstances to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.

We approach the question presented in two parts: First, have California's wage and hour statutes or regulations adopted

Yet when it comes to monitoring the minutia of human behavior, the future and the present are converging. In a world with pervasively deployable (or already deployed) locative technology such as smartphones and sensors, what employers can routinely record-or will soon be able to-are precisely the "split-second absurdities" previously deemed impossible to track. (See Tippett et al., When Timekeeping Software Undermines Compliance (2017) 19 Yale J.L. & Tech. 1 , 2-3 ["In place of the old punch-card time clock, employees now log onto a computer or mobile device, swipe a radio frequency identification (RFID) badge, scan a fingerprint, or gaze into an iris recognition device. These and similar systems enable employers easily to record employees' hours worked, breaks taken, and other information used to

way to settle whether to track even "split seconds."

n Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680 , 66 S.Ct. 1187 , 90 L.Ed. 1515 ( Anderson ), the high court considered whether certain types of employee activity constituted compensable work time. The worksite was a pottery plant covering eight acres, and the principal question was whether the employees should be compensated for the time spent walking to and from their workstations and engaging in certain preliminary and postliminary activities. The court held that generally such time is compensable: "Since the statutory workweek includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace, the time spent in these activities must be accorded appropriate compensation." ( Id. at pp. 690-691, 66 S.Ct. 1187 .) The court further held that once an employee proves damages from an employer's failure to pay for compensable work, the fact that the precise amount of the damages is difficult to prove because of the employer's inadequate recordkeeping cannot be counted against the employee: "[T]he employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case 'it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.' " ( Id. at p. 688, 66 S.Ct. 1187 .)

But Anderson qualified these holdings with a caveat: "We do not, of course, preclude the application of a de minimis rule where the minimum walking time is such as to be negligible. The workweek contemplated by § 7(a)

Lavitt, Monitoring Employee Whereabouts: Collective Bargaining Implications of RFID and GPS Technologies in the Workplace (Nov. 4, 2011) 5th Annual ABA Section of Labor & Employment Law Conference, at pp. 11-13 < https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/155.authcheckdam.pdf> [as of July 24, 2018] [discussing cases where collective bargaining agreements addressed GPS and other employee tracking systems].) So we must be wary of any future holding that would incentivize a drastic increase in the scope and intensity of employee monitoring, which might systematically erode employees' ability to find even a moment of privacy in their lives. (Kesan, Cyber-Working or Cyber-Shirking?: A First Principles Examination of Electronic Privacy in the Workplace (2002) 54 Fla. L.Rev. 289 , 320 [noting fears that excessive monitoring of employees creates essentially " 'electronic sweatshop[s]' "].) This is especially true as privacy issues have launched to the national stage and resulted in new laws in our state safeguarding privacy in our personal data, albeit in the consumer law context. (See Consumer Privacy Act of 2018, Civ. Code, § 1798.100 et seq. (added by Stats. 2018, ch. 55, § 3, eff. Jan. 1, 2020) [granting any consumer, defined as "a natural person who is a California resident," certain rights with respect to personal data collected by businesses].) At the very least, our compensation rulings should not require subcutaneous microchips, pervasive digital surveillance of all employees' actions and communications, or other employment monitoring systems more at home in a cyberpunk novel than a modern place of employment. (See, e.g., Mo. Rev. Stat., § 285.035(1) ["No employer shall require an employee to have personal identification microchip technology implanted into an[ ] employee for any reason"].)

The majority here does not reach such a troubling result. Instead it observes that employers have the burden of tracking potential work time occurring on a "regular basis" or that is "a regular feature of the job," and in doing so, rightly focuses on reasonable solutions such as smartphone apps or rounding strategies for tracking these regular amounts of time. (Maj. opn., ante , 235 Cal.Rptr.3d at p. 833, 421 P.3d at p. 1125.) The unpredictable length and occasional nature of the additional work at issue may affect the viability of some timekeeping systems and rounding strategies-though here too, other monitoring or data analysis approaches may often resolve the difficulties.

Subsequently, the Ninth Circuit in Lindow v. U.S. (9th Cir. 1984) 738 F.2d 1057 ( Lindow ) explained that "in determining whether otherwise compensable time is de minimis [under the FLSA], 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." ( Id. at p. 1063.) This test has been widely used by federal courts. (See, e.g., Kellar v. Summit Seating Inc. (7th Cir. 2011) 664 F.3d 169 , 176 ; Carlsen v. United States (Fed.Cir. 2008) 521 F.3d 1371 , 1380-1381 ; De Asencio v. Tyson Foods, Inc. (3d Cir. 2007) 500 F.3d 361 , 374-375 ; Brock v. City of Cincinnati (6th Cir. 2001) 236 F.3d 793 , 804-805 ; Kosakow v. New Rochelle Radiology Assocs., P.C. (2d Cir. 2001) 274 F.3d 706 , 719 ; Metzler v. IBP, Inc. (10th Cir. 1997) 127 F.3d 959 , 965.)

Lindow noted that "[m]ost courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable." ( Lindow , supra , 738 F.2d at p. 1062 [collecting cases].) But Lindow recognized that "[n]o rigid rule can be applied with mathematical certainty." ( Ibid. ) Lindow also observed that courts should consider "the size of the aggregate claim. Courts have granted relief for claims that might have been minimal on a daily basis but, when aggregated, amounted to a substantial claim. [Citations.

task was "de minimis" after the fact. In contrast, there may be occasional activities involving far less time than was at issue here, peripheral to the employee's core job function, and undertaken for reasons other than service to the employer.

As easily available technologies can increasingly track our every movement and moment, California law still protects workers from being forced to undertake work that won't be paid. That protection is not diluted if it remains possible for employers to argue against liability for moments so fleeting that they are all but imperceptible. Courts may sometimes find employers' arguments to have merit in light of a context-dependent inquiry focused on the extent to which the time in question can be meaningfully perceived, the quantity and regularity of the uncompensated work over time, as well as the nature of the employee's job responsibilities and related factors. What we know is that regular minutes worked by employees off the clock do not come close to being treatable essentially as rounding errors under a sensible application of a rule of reason. And issues of employee privacy will no doubt be subject to further deliberation among employers, employees, and legislators. Yet whatever the merits of sophisticated employee monitoring schemes, California law stops well short of requiring employer analysis of every fractional second as part of an unsparing effort to discern what time is compensable.

CONCURRING OPINION BY KRUGER, J.

I concur in the majority opinion, which I have signed. I write separately to address the central question the opinion leaves open: whether, in circumstances different from those presented in this case, the de minimis principle may apply to California wage and hour claims. (See maj. opn., ante , 235 Cal.Rptr.3d at pp. 823, 829, 833, 421 P.3d at pp. 1116, 1121, 1125.)

"When construing the Labor Code and wage orders, we adopt the construction that best gives effect to the purpose of the Legislature and the IWC. [Citations.] Time and again, we have characterized that purpose as the protection of employees-particularly given the extent of legislative concern about working conditions, wages, and hours when the Legislature enacted key portions of the Labor Code. [Citations.] In furtherance of that purpose, we liberally construe the Labor Code and wage orders to favor the protection of employees. [Citations.]" ( Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257 , 262, 211 Cal.Rptr.3d 634 , 385 P.3d 823 ( ABM Security ).)

"Federal regulations provide a level of employee protection that a state may not derogate. Nevertheless, California is free to offer greater protection. We have stated that, '[a]bsent convincing evidence of the IWC's intent to adopt the federal standard for determining whether time ... is compensable under state law, we decline to import any federal standard, which expressly eliminates substantial protections to employees, by implication.' [Citation.] More recently, we have 'cautioned against "confounding federal and state labor law" [citation] and explained "that where the language or intent of state and federal labor laws substantially differ, reliance on federal regulations or interpretations to construe state regulations is misplaced." ' " ( Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833 , 843, 182 Cal.Rptr.3d 124 , 340 P.3d 355 ( Mendiola ).) On a number of occasions, we have recognized the divergence between IWC wage orders and federal law, generally finding state law more protective than federal law. (See ibid. [departing from federal law in requiring compensation for sleep and other personal activities for on-call employees residing on employer's premises for extended period]; Martinez v. Combs , supra , 49 Cal.4th at pp. 67-68, 109 Cal.Rptr.3d 514 , 231 P.3d 259 [noting the divergence between state and federal definitions of "employ"]; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 , 588-592, 94 Cal.Rptr.2d 3 , 995 P.2d 139 ( Morillion ) [state law has not adopted a rule

also leaves room for application of a background rule of reason. A sensible application of our law does not encompass claims for negligible periods of time that cannot reasonably be measured or estimated with a fair degree of accuracy.

The United States Supreme Court described this sort of a commonsense limitation on wage claims when it held that "[s]plit-second absurdities" are to be disregarded in calculating compensable working time. (

ante , 235 Cal.Rptr.3d at p. 827, 421 P.3d at p. 1119)-spends a minute or two helping the customer.

In situations like these, a requirement that the employer accurately account for every second spent on work tasks may well be impractical and unreasonable; if so, a claim for wages and penalties based on the employer's failure to do so would be inconsistent with California labor law, construed with the guidance of the background rule codified in Civil Code section 3533.

California law does, in short, make some allowances based on considerations of practicality and reasonableness. It does not, however, permit an

Only one published Court of Appeal decision has applied the de minimis rule in an employee compensation case, specifically using the Lindow factors. ( Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508 , 527-528, 93 Cal.Rptr.3d 388 .) But it did so without considering whether the rule should apply to California wage claims,

We decline to decide whether a de minimis principle may ever apply to wage and hour claims given the wide range of scenarios in which this issue arises. In FLSA litigation, the brief employee activity in question has sometimes been incidental to noncompensable time, such as commute time. (See Chambers v. Sears Roebuck & Co. (S.D.Tex. 2011) 793 F.Supp.2d 938 , 960 ;

We have said that application of a de minimis rule is inappropriate when "the law under which this action is prosecuted does care for small things." ( Francais v. Somps (1891) 92 Cal. 503 , 506, 28 P. 592 .) In deciding whether application of the de minimis rule in this case would be consistent with the governing wage order and Labor Code statutes, we observe that the regulatory scheme of which the relevant statutes and wage order provisions are a part is indeed concerned with "small things." For example, California law ensures that most nonexempt employees receive two daily 10-minute rest breaks. (Wage Order No. 5, subd. (12)(A); see Brinker , supra , 53 Cal.4th at p. 1031, 139 Cal.Rptr.3d 315 , 273 P.3d 513 .) We have interpreted Wage Order No. 5 as requiring strict adherence to that requirement, and we have scrupulously guarded against encroachments on this 10-minute period. Thus, we recently held that the obligation to relieve employees of any work-related duties during the rest period barred employers from requiring employees to be on call during their rest breaks

Although the IWC has not specifically addressed the de minimis rule, we note that its regulations have been more expansive than the FLSA in defining the time for which an employee must be compensated. Most closely on point is the IWC's response to the federal Portal-to-Portal Act ( 29 U.S.C. § 251 et seq. ). This legislation was a 1947 amendment to the FLSA relieving "employers from paying minimum wages or overtime compensation to employees for the following activities: '(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities ....' " ( Morillion , supra , 22 Cal.4th at p. 589, 94 Cal.Rptr.2d 3 , 995 P.2d 139 .) The amendment was "partly in response to [Congress's] concern that the FLSA 'has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees ....' " ( Id. at p. 590, 94 Cal.Rptr.2d 3 , 995 P.2d 139 , quoting 29 U.S.C. § 251 .) More specifically, the amendment was a response to Anderson 's holding that the time walking to a workstation was compensable. (See Linder, Class Struggle at the Door: The Origins of the Portal-to-Portal Act of 1947 (1991) 39 Buff. L.Rev. 53 , 106-130.) At the same time, the IWC amended its definition of "hours worked" in its wage orders, eliminating reference to specific preliminary or postliminary activities such as "waiting time," while broadening the definition to include " 'the time during which an employee is subject to the control of an employer.' " ( Morillion , at p. 591, 94 Cal.Rptr.2d 3 , 995 P.2d 139 .) We concluded that this amended language was evidence of an intent to depart from the federal exclusion of various forms of travel time in the Portal-to-Portal Act. ( Id. at pp. 591-592, 94 Cal.Rptr.2d 3 , 995 P.2d 139 .)

Although the IWC amendment, which postdated Anderson by one year, did not specifically address the de minimis doctrine, we find it instructive that the amended wage order broadly defined "hours worked" to include preliminary and postliminary activities excluded by the FLSA. It is also instructive that the IWC in defining "hours worked" appeared to give little weight to the customary employment practices that informed Congress's decision to enact the Portal-to-Portal Act and instead placed more importance on the policy of ensuring that employees are fully compensated for all time spent in the employer's control.

Moreover, although FLSA case law can be persuasive authority in interpreting our own wage laws, the reasoning of Anderson is questionable. We do not hold that payment for time worked must account for "[s]plit-second absurdities." ( Anderson , supra , 328 U.S. at p. 692, 66 S.Ct. 1187 .) But it is not clear that

Two additional considerations reinforce our reluctance to fully adopt Anderson 's reasoning as a matter of state law. First, the modern availability of class action lawsuits undermines to some extent the rationale behind a de minimis rule with respect

Significantly, the court in See's Candy , consistent with federal law and DLSE directive, accepted the validity of the rounding policy only "if the rounding policy is fair and neutral on its face and 'it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.' " ( See's Candy , supra , 210 Cal.App.4th at p. 907, 148 Cal.Rptr.3d 690 .) On this basis, the court held there was a triable issue as to whether the company's rounding policy "was proper under California law because

CONCLUSION

We hold that the relevant California statutes and wage order have not incorporated the de minimis doctrine found in the FLSA. We further conclude that although California has a de minimis rule that is a background principle of state law, the rule is not applicable to the regularly reoccurring activities that are principally at issue here. The relevant statutes and wage order do not allow employers

In the absence of a legislatively drawn bright line, making sense of the resulting questions may work best, as Justice Kruger suggests in her concurring opinion, if we apply some "rule of reason" for determining which of these claims are sufficient to bring a wage and hour suit. (Conc. opn. of Kruger, J., post , at p. 2.) The rule of reason is best not described as a de minimis rule, because embracing that label risks blurring the distinction between the quite limited extent of the reasonableness inquiry under California law and a federal de minimis doctrine with a particular content-including reliance on administrability-that does not necessarily converge

Here, we consider provisions of California labor law that mandate compensation for "[a]ny" ( Lab Code, § 510, subd. (a) ) and "all" time worked (Industrial Welfare Com., Wage Order No. 5, subd. 2(K) ). The breadth of the language reflects California's vital interest in ensuring that employers fully compensate their employees for the work they perform. (See, e.g., Kerr's Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319 , 326, 19 Cal.Rptr. 492 , 369 P.2d 20 [citing California's strong public policy "in favor of full and prompt payment of wages due an employee"].) But the law, fairly construed,

The claim here involves nontrivial, regularly occurring periods of work, and thus is not subject to any such properly limited de minimis rule. And I agree with the majority that without an appropriate factual record before us, this is not the case for detailed delineation of the rule's proper scope. But it is not difficult to imagine a number of scenarios in which such a rule might apply, depending on the circumstances:

• An employer requires workers to turn on their computers and log in to an application in order to start their shifts. Ordinarily this process takes employees no more than a minute (and often far less, depending on the employee's typing speed), but on rare and unpredictable occasions a software glitch delays workers' log-ins for as long as two to three minutes.

• An employer ordinarily distributes work schedules and schedule changes during working hours at the place of employment. But occasionally employees are notified of schedule changes by e-mail or text message during their off hours and are expected to read and acknowledge the messages.

• After their shifts have ended, employees in a retail store sometimes remain in the store for several minutes waiting for transportation. On occasion, a customer will ask a waiting employee a question, not realizing the employee is off duty. The employee-with the employer's knowledge (see maj. opn,

On March 7, 2014, the district court granted Starbucks's motion for summary judgment. The district court's decision assumed that each activity identified above was compensable for purposes of its analysis. The undisputed evidence was that these closing tasks required Troester to work four to 10 additional minutes each day. As the district court stated: "The undisputed facts show that, on average, Plaintiff activated the alarm approximately one minute after he clocked out. Moreover, he did so within two minutes on 90 percent of the shifts and within five minutes on every shift. Once he set the alarm, Plaintiff needed to exit the store within one minute to avoid triggering the alarm. And Plaintiff testified that it took 30 seconds to walk out of the store. He then locked the door, which took 15 seconds to 'a couple minutes,' and walked his coworkers to their cars, which took 35 to 45 seconds. On rare occasions-once every couple of months-Plaintiff spent a few minutes letting coworkers back inside the store or bringing in patio furniture that he forgot to retrieve before clocking out."

The Labor Code also contemplates that employees will be paid for all work performed. (All statutory references are to the Labor Code unless otherwise indicated.) Section 510, subdivision (a) provides: "Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee." The section recognizes certain exceptions in various statutorily authorized alternative workweeks, but no others.

The federal rule permitting employers under some circumstances to require employees to work as much as 10 minutes a day without compensation is less protective than a rule that an employee must be paid for "all hours worked" (Wage Order No. 5, subds. 3(A), 4(A) ) or "[a]ny work" beyond eight hours a day ( Lab. Code, § 510, subd. (a) ). And there is no " 'convincing

Instead of prejudging these factual permutations, we decide only whether the de minimis rule is applicable to the facts of this case as described by the Ninth Circuit. As noted, Troester had various duties related to closing the store after he clocked out, and the parties agree for purposes of resolving the issue before us that the time spent on these duties is compensable. According to the Ninth Circuit, "[t]he undisputed evidence was that, on a daily basis, these closing tasks generally took [Troester] about 4-10 minutes .... [The district court] further assumed that the additional time would be administratively difficult to capture." (This time is in addition to the time Troester alleges he spent "once every couple months" letting

ABM Security , though addressing a different issue, is instructive in two respects. First, although the de minimis principle was not explicitly invoked, we implicitly rejected the argument that a de minimis intrusion into a 10-minute rest period would pass muster under the statute. Second, the strict construction of a law prohibiting

Second, many of the problems in recording employee work time discussed in Anderson 70 years ago, when time was often kept by punching a clock, may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices. We are reluctant to adopt a rule purportedly grounded in "the realities of the industrial world" ( Anderson , supra , 328 U.S. at p. 692, 66 S.Ct. 1187 ) when those realities have been materially altered in subsequent decades.

Both Troester and Starbucks cite See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 , 148 Cal.Rptr.3d 690 ( See's Candy ) in support of their positions. The main issue in that case was the employer's practice of rounding the time employees punched in or out of work. As the court explained: "Under the nearest-tenth rounding policy, in and out punches are rounded (up or down) to the nearest tenth of an hour (every six minutes

Modern technology allows society not only to measure time, but-ever more-to master the knowledge of precisely how it is used, by whom, and for what purpose. In federal case law, the de minimis doctrine is grounded in the practical administrative difficulties of tracking time that amounts to "split-second absurdities." ( Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680 , 692, 66 S.Ct. 1187 , 90 L.Ed. 1515 ( Anderson ).) Change the technology available to employers and the public's acceptance of broad surveillance, and the result is a shift in the norm governing what's "practical." The majority opinion rightly observes that computer and smartphone technologies undercut any rationale for a de minimis doctrine that would find minutes of work performed on a regular basis to not be compensable. (Maj. opn., ante , 235 Cal.Rptr.3d at p. 833, 421 P.3d at p. 1125.) More generally, the majority indicates that "technological advances" may increasingly facilitate tracking small amounts of regularly occurring work time. ( Ibid. )