Bits of Unpaid Worker Time Pose Big Liability Risk for Companies

Connecticut’s top court is poised to join those in California, Pennsylvania, Maryland, and elsewhere confronting whether and when state law lets employers avoid paying for short periods of worker time.

The case, in which the Connecticut justices must answer questions posed by a federal appeals court, is part of a series of worker lawsuits against companies including Amazon, Nike, and Starbucks seeking pay for those minutes spent in security screening lines, donning and doffing safety gear, and booting up workplace computer systems.

The suits involve small amounts of time but potentially large numbers of workers and can quickly add up to millions of dollars in corporate savings—or liability.

A concept known as the de minimis doctrine sometimes allows companies to avoid paying for seemingly negligible amounts of time spent on otherwise compensable pre- and post-shift tasks, providing an out for the employers facing some of those suits. The defense is available in federal Fair Labor Standards Act cases, but over the past decade, some courts have ruled that it doesn’t give employers a free pass for claims arising from certain states’ wage laws.

The exception is meant to cover short periods that “can’t easily be captured” on a time sheet, but it’s “really hard to specify a range” because whether the defense applies depends on multiple factors, said Epstein Becker & Green PC’s Jeff Ruzal, who defends employers facing wage litigation.

In “robust” class or collective cases, the aggregate unrecorded time could represent a “much larger” total amount, which could diminish the defense that individual tasks took only a few minutes, Ruzal added. Even where the exception is asserted, its application is “heavily scrutinized by courts,” he said.

Judges examining whether unpaid time is actually de minimis look at whether it’s “hard to compute,” whether it’s “irregular"—such as a one-off chat with a supervisor after clocking out that lasts five minutes—and how little time is at issue, said Temple University law professor Jennifer Lee. If someone has to regularly show up early or answer emails after hours, “why shouldn’t that be paid work time?”

For low-wage hourly employees, “every fraction of pay counts,” Lee added.

California, Pennsylvania, and Washington all explicitly bar the de minimis exception, and a federal judge analyzing New Jersey law suggested it’s also unavailable there. Maryland on July 3 went the other way with its justices adopting the defense. Now, in an Amazon fulfillment center case, Connecticut—which sometimes allows the exception—has the chance to clarify first whether state law requires pay for time spent undergoing mandatory security screenings and, if so, whether that time is ever de minimis.

No Bright Line

The defense dates back to a US Supreme Court opinion issued nearly eight decades ago. But that lengthy history doesn’t mean it’s easy for workers, employers, or even courts to figure out how small an increment of unpaid time counts as de minimis.

“A good rule of thumb” is that tasks that take less than 10 minutes are often de minimis, while courts won’t excuse longer periods of unpaid work, said Temple’s Lee. However, “there is no bright line rule,” and that time window is still “evaluated in conjunction with the other criteria,” added Lee, who directs a clinic representing immigrants and low-wage workers.

In one FLSA case that made multiple Ninth Circuit trips, Customer Connexx LLC workers alleged starting up their old, slow computers and shutting them down after their call center shifts could take anywhere from a few minutes to half an hour. The upper ends of that range “cannot be characterized as de minimis,” the appellate court said last year. The Ninth Circuit sent the case back to a trial judge to look into workers’ aggregate unpaid hours, and the parties ultimately settled.

California’s top court in 2018 spurred the resurgent focus on de minimis exceptions to state wage laws with a ruling prohibiting the defense in a case against Starbucks Corp. A Washington state court followed in a 2021 ruling involving Valley Communications Center, a regional emergency dispatch operation.

The wave of security screening pay suits against Amazon.com Inc. and related entities is responsible for more recent rulings, including barring the de minimis defense in Pennsylvania in 2021, allowing it in Maryland, and teeing it up for consideration in Connecticut.

Amazon also won court approval last year for a $7 million settlement in a multi-district case with some of the workers seeking pay for time spent in stop-loss security lines.

Starbucks settled its case for an undisclosed amount in 2020. Nike Retail Services Inc. workers who benefited from the California Supreme Court’s de minimis ruling reached an $8.25 million deal with their employer, which received final court approval in 2022.

Tracking Time

Many states’ wage laws track the FLSA, and those that don’t explicitly prohibit the de minimis exception likely permit it, Ruzal said. Where states haven’t explicitly answered the question one way or another, “their particular laws and regulations” are key to analyzing the defense’s availability, he said.

Retail, hospitality, and other employers who want to avoid needing the defense can implement and enforce policies prohibiting off-the-clock work, Ruzal added.

Improved timekeeping technology means “employers can now move beyond the physical punch clock,” giving them “less of an excuse to argue that the time is hard to track,” Lee said.

Some courts “like to have de minimis around” so they can get rid of small-dollar cases they don’t see as worth their time, said University of Oregon law professor Elizabeth Tippett, who researches employment law. The doctrine is a “defensible principle for activities that do not occur every day,” but it can give companies “cover for not being completely by the book” when timekeeping, she said.

The exception “becomes problematic in really, really large cases” where a class or collective seeks pay for individually brief periods, and the minutes “can really add up across a workforce and across time,” Tippett said.

(An incorrect AI summary previously at the top of this story was removed.)