Hunton Employment & Labor Perspectives

In a unanimous decision in Rodriguez v. Nike Retail Srvs., the Ninth Circuit overturned a California district court’s ruling in a wage and hour class action under the California Labor Code that granted Nike’s motion for summary judgement after applying the federal de minimis doctrine.

Like many retailers, Nike required employees to undergo a security check as a theft prevention measure prior to leaving the premises to take breaks or at the end of their shifts. Employees would clock out in the back of the store and proceed to the front of the store to go through the security check process. The district court determined that it was an undisputed fact that the process took between zero and three minutes, and based its decision on the federal de minimis doctrine. However, the district court’s decision was issued prior to the California Supreme Court’s ruling in Troester v. Starbucks.

In sum, the Troester court determined that the federal de minimis doctrine, which courts have held precludes employees from recovering otherwise compensable amounts of time up to ten minutes per day on the grounds that the amount of time is small or irregular, is not an available defense for wage and hour claims that are brought pursuant to the California Labor Code. However, its specifically left open whether there were instances where the amount of time worked was “so minute or irregular” that a theoretical California version of the doctrine could apply.  For a detailed discussion of the Troester case and the de minimis doctrine, review our previous blog post here.

Nike conceded on appeal that the federal de minimis doctrine was no longer available as a defense under California law, but it argued that the security check qualified as de minimis even under Troester given the opening that the California Supreme Court left for the possibility that some version of the de minimis doctrine could apply.  Specifically, Nike pointed to the Troester court’s statement that an employer cannot require employees to work for “minutes” off of the clock without compensation. Thus, Nike argued that the de minimis doctrine should apply where only a matter of seconds are involved.

The Ninth Circuit declined to adopt Nike’s interpretation and instead determined that Troester applies whenever an employee is regularly required to work for a measurable amount of time.  In light of the Ninth Circuit’s decision, employers should evaluate their security check procedures to determine whether the security checks can be effectively completed prior to employees clocking out. For example, it may be feasible to place time clocks at the security check area so that employees can clock out after the security check is completed.