SAN FRANCISCO —
Tort-reform advocates and business leaders are speaking out on a
pending California Supreme Court review of a lawsuit that has
potential serious implications for employers.
in the Northern California Record,
the California Supreme Court has agreed to review the plaintiff’s
arguments in a wage and hours case after it was thrown out by the
federal 9th Circuit Court of Appeals. A ruling is expected some time
The Supreme Court
will decide whether a long-standing federal rule — the de minimis
doctrine that employees do not have to be paid for the small amount
of time spent on premises before clocking in or after clocking out —
applies to California labor law.
filed suit alleging that Starbucks violated the California Labor Code
by failing to pay him for the short periods of time he spent closing
Starbucks failed to pay him for time spent walking out of the store
after activating the security alarm, for the time he spent turning
the lock on the store’s front door, and for the time he spent
occasionally re-opening the door so that a co-worker could retrieve a
represented by attorney David Spivak of the Spivak Law Firm, filed a
class action under the California Labor Code for failure to pay
minimum and overtime wages, failure to provide accurate written wage
statements, and failure to timely pay all final wages.
president of the Civil Justice Association of California, told the
Northern California Record that is not unheard of for the state
Supreme Court to be asked to decide on an issue
already adjudicated at federal level.
Circuit threw out the federal claims, but asked the California
Supreme Court to review it in regards to state law,” he said. “It
is not that usual to pop back and forth, but I think the 9th Circuit
did not feel comfortable making a decision on California laws.”
that it is a disappointment that this is a matter that is left
“It is a
sensible rule consistently applied to California wage and hour laws
and helps prevent frivolous and abusive lawsuits,” he said.
employers do not know the status of the “de minimis” as it
applies to California. But there is a good reason these exist,
Doherty said, because it is so difficult to weigh this small amount
of activity against value.
“Until we hear
a judgment on the case the rule does not apply, but I hope the court
does end up concluding that this well-established and longtime rule
stays in effect,” he said.
“If the court
somehow does not apply, there will be significant hardship to
employers, a very high cost and another against employers.
is a dangerous business trying to predict what the California Supreme
Court will do, but certainly it would be a surprise if it went
against the national trend, both at federal and state level."
On the reasoning
behind the case taken in the first place, Doherty argues it is just
one of the problems within the system “where there are right and
“This is a
frivolous lawsuit saying the de minimis standard should not be used.
The fact it can get up to the Supreme Court is challenging to the
legal system,” he added.
the plaintiff did not succeed in federal court, the costs to
Starbucks are likely substantial.
“It is a good
example of the court not being put to good use,” Doherty said.
general counsel for California Chamber of Commerce, took a slightly
different view, arguing that is is good that this doctrine is going
to be ruled on by the Supreme Court. Frank told the Northern
California Record that she believes the court will back up the
federal standard, and we have numerous cases where courts have
adopted the de minimis standard,” Frank said. “While there is no
specific California law, it is in the Department of Labor Standards
Enforcement manual. Nevertheless, employers are still exposed to
believes the California Supreme Court should clear up any ambiguity
that still exists around this standard.
“If the court
does not rule in favor of the standard the flood gates will open,”
Frank added. “I am hoping the court will look at the precedent, the
9th Circuit and U.S. Supreme Court rulings and adopt it for
It is dangerous
for employers, who are concerned about what might happen, Frank said,
adding that it is “ridiculous” for someone to be paid the minute
you walk on to the property.
The 9th Circuit
asked for the case to be reviewed because there is no statute in
California law that requires the de minimis doctrine.
If the ruling is
in favor of the plaintiff, it is “really hard to tell” whether
the Legislature will introduce legislation to cover the loophole,