09 Jul Ninth Circuit Makes Clear That Employees Must Be Paid for All Time Worked
On June 28, 2019, the Ninth Circuit Court of Appeals in Rodriguez v. Nike Retail Services, Inc., reversed s summary judgment in favor of Nike in a class action lawsuit seeking compensation for the time employees had to undergo exit inspections every time they left the store. The Rodriguez court noted that the California Supreme Court in Troester v. Starbucks Corp. had rejected application of the federal de minimis doctrine, which precluded recovery for otherwise compensable amounts of time that are small, irregular, or administratively difficult to record, to wage and hour claims brought under California law.
Portending an ominous sign for employers, the Rodriguez court rejected Nike’s argument that the “off the clock” time at issue were mere seconds, as opposed to minutes, because only 3.3% of the exits lasted more than 60 seconds. While acknowledging that employees need not be paid for “split-second absurdities,” or “where work is so irregular that it is unreasonable to expect the time to be recorded,” the Rodriguez court made clear that “an employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine.”