9th Circuit: De Minimis Rule Does Not Apply to Regular Work Activity Regardless of How Little Time is Spent

In Rodriguez v. Nike Retail Servs., Inc., the Ninth Circuit refused to apply the de minimis rule to time employees spent participating in security checks after clocking out, even though the time spent could have been less than a minute. The de minimis rule allows employers to forego paying employees for short, uncertain and indefinite periods of time that are irregularly worked off the clock.

Last year, the California Supreme Court in Troester v. Starbucks stated that all hours worked must be compensated under state law. Rodriguez refused to implement an exception to this rule for less than a minute of time regularly spent off the clock. Specifically, the court would only have considered the de minimis rule to apply to “split-second absurdities” or to brief work that is so “irregular that it is unreasonable to expect the time to be recorded.”

Here, the security screens were a regular requirement when exiting store property. This meant that the de minimis rule could not apply, regardless of how little time was spent off the clock. Employers must take care to ensure all regularly worked time is compensated. Best practice is to allow employees to clock out after all activity associated with employment has concluded. This can be accomplished through timekeeping systems strategically placed next to exits, or apps that allow employees to remotely clock out from any location.

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