When will our judicial system consider employers and the reality of what businesses need to survive in the most difficult and hostile employer environment in the world? The California Supreme Court handed down another decision to arm the attorneys with a way to sue employers and most will not even understand what it is. Federal de minimis rule does not apply in California as of July 26, 2018.

In 1961, the de minimis doctrine (a Latin term meaning about minimal things) 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 Fair Labor Standards Act (FLSA), insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis.

The case that led to this ruling was from a disgruntled Starbucks employee and claimed he worked off the clock. The undisputed evidence was that these closing tasks required the employee 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.”

If you have an employee that punches out, turns out the light, locks up the store, and leaves, you could be on the hook for the time the employee clocked out and the time the employee walked out the front door. How is it possible we continue in California to allow our judges to make these kind of decisions?

Goodwin Liu, one of the Supreme Court Justices, felt this additional money the employee should have been paid, about $100 over a 17 month time frame, would of helped buy some groceries. What our judge is not considering is how much will this cost the employer to defend and how much it will cost in penalties and legal fees. The worst part is how many more lawsuits will come out of such a decision.

I had a job in the Detroit area when I was 17 and would clock out and lock the store. We would drop of the money at bank in the mall, and walk female employees to their cars in the parking lot, as that was the honorable thing to do. There was never a moment I thought I should have been paid the time it took for me to lock the front gate, and ensure the safety of my co-workers. Leave it to the lawyers and the judges to see this differently.

The California Supreme Court needs to take some time and meet with some business owners and listen to the reality of running a business in California. I would be more than happy to set up the meeting for you. There was a Senator who championed a bill that was anti-business and pro trial lawyer this year and continued to use the term, “Chilling Effect”, over and over again as how the employee was being harmed. How about the chilling effect on the employer?

Facts on owning a business in California are we have the highest workers compensation rate in the country, the highest taxes, the highest minimum wages, one of the most litigious states, the only state with PAGA Law, sue your boss over late lunches, or any labor law violation in the 1,060 page digest, most regulated state, and our judges continue to pile it on. At a certain point businesses will not be able to survive such a climate.