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A Very De Minimis De Minimis FLSA Exemption
Posted 08.09.18
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Jonathan A. Segal
Partner
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I am pleased to share my latest post to The SHRM Blog.

As a general rule, employers must pay non-exempt employees for all time that they work (broadly defined) and that includes getting ready for work (preliminary activities) and finishing work (postliminary activities).  As discussed below, there is a de minimis exemption under federal law (FLSA).

In a recent case involving Starbucks, the California Supreme Court held the de minimis exemption was not available under California state law under the facts of the case.  If and when the de minimis exemption may be available under California state law will be decided in future litigation.

Some of the legal summaries of the Starbucks case suggest that the federal de minimis exemption is broader than it is. It is very narrow.

The following statement comes from the website of the United States Department of Labor:

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded.  The courts have held that such periods of time are de minimis (insignificant).  This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.  As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained….

https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenee29.asp

Notice some key concepts from the DOL’s enforcement position: (a) short (few seconds or minutes); (b) uncertain (cannot be regular occurrence;) (c) indefinite (which generally means not predictable amount of time each occurrence) and (d) cannot be precisely recorded (vague enough?)

Employers should draft their policies, train their managers, and review their practices to minimize the possibility that there will be any work for which an employee is not paid.  Think of the de minimis exemption only as last resort for litigation.

Employers need to consider work not only at beginning and end of the day but also any work that may be done during an unpaid meal period.  Another issue that needs to be considered is any work that may be done remotely, such as by telephone or e-mail.

The possible case scenarios go beyond this blog but employers need to think them through in drafting compliant policies, training managers and reviewing actual practices. Failure to do so may result in off the clock cases with off the clock judgments.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .