In the supreme court of california

Conclusion

We hold that the relevant California statutes and wage order have not incorporated the de minimis doctrine found in the FLSA. We further conclude that although California has a de minimis rule that is a background principle of state law, the rule is not applicable here. The relevant statutes and wage order do not allow employers to require employees to routinely work for minutes off-the-clock without compensation. We leave open whether there are wage claims involving employee activities that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.

LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

GRIMES, J.^*

CONCURRING OPINION BY CUÉLLAR, J.

Today’s majority opinion is right to conclude that no de minimis doctrine exists under California law to insulate an employer from responsibility for paying an employee who regularly works for minutes off the clock. But in reaching this conclusion, the majority opinion also leaves unresolved whether an employee’s work may ever be so fleeting or irregular that such time is no longer compensable. I write separately to emphasize that our opinion today is both principled and practical: It protects workers from being denied compensation for minutes they regularly spend on work-related tasks, but does not consign employers or their workers to measure every last morsel of employees’ time. The latter point is as important as the former, because advances in technology and changes in behavioral norms are constantly shaping our understanding of what fractions of time can be reliably measured, and what counts as too trifling a moment to measure in the wage and hour context. While there is no de minimis rule that applies to this domain of California law — at least where minutes of regular off-the-clock time are at issue — there is room for a rule of reason to avoid a situation forcing employers to monitor every fraction of every second of employee time. But what we must avoid in addressing these concerns — and in construing the body of law the majority opinion interprets today — is building a rickety skyscraper on a muddy swamp by relying on an administrability rationale too precarious to offer much meaningful analytical structure to a rule of reason, given the evolving technological fabric of modern life.

Modern technology allows society not only to measure time, but — ever more — to master the knowledge of precisely how it is used, by whom, and for what purpose. In federal case law, the de minimis doctrine is grounded in the practical administrative difficulties of tracking time that amounts to “split-second absurdities.” (Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692 (Anderson).) Change the technology available to employers and the public’s acceptance of broad surveillance, and the result is a shift in the norm governing what’s “practical.” The majority opinion rightly observes that computer and smartphone technologies undercut any rationale for a de minimis doctrine that would find minutes of work performed on a regular basis to not be compensable. (Maj. opn., ante, at p. 20.) More generally, the majority indicates that “technological advances” may increasingly facilitate tracking small amounts of regularly occurring work time. (Ibid.)

Yet when it comes to monitoring the minutia of human behavior, the future and the present are converging. In a world with pervasively deployable (or already deployed) locative technology such as smartphones and sensors, what employers can routinely record — or will soon be able to — are precisely the “split-second absurdities” previously deemed impossible to track. (See Tippett et al., When Timekeeping Software Undermines Compliance (2017) 19 Yale J.L. & Tech. 1, 2–3 [“In place of the old punch-card time clock, employees now log onto a computer or mobile device, swipe a radio frequency identification (RFID) badge, scan a fingerprint, or gaze into an iris recognition device. These and similar systems enable employers easily to record employees’ hours worked, breaks taken, and other information used to determine compensation.” (fn. omitted)].) Even as such practices can help employers ensure their workers are compensated for regularly worked minutes that might have once been treated as “off the clock,” they also highlight the need for subsequent line drawing to implement existing law. Without some appropriate limiting principle, one can imagine a lawsuit based on regularly occurring or even occasional additional work time that amounts to less than a second. Depending on the industry, employers may have difficulty arguing, as a matter of administrability, that they cannot either categorically exclude from employees’ responsibility any time employers cannot measure, or deploy increasingly familiar technologies to measure such narrow slices of time with some accuracy.

In the absence of a legislatively drawn bright line, making sense of the resulting questions may work best, as Justice Kruger suggests in her concurring opinion, if we apply some “rule of reason” for determining which of these claims are sufficient to bring a wage and hour suit. (Conc. opn. of Kruger, J., post, at p. 2.) The rule of reason is best not described as a de minimis rule, because embracing that label risks blurring the distinction between the quite limited extent of the reasonableness inquiry under California law and a federal de minimis doctrine with a particular content — including reliance on administrability — that does not necessarily converge with California’s legal commitments. Those commitments protect workers from being forced to engage in uncompensated work even as they also offer some recognition that certain spare seconds or fractions of them spent on arguably work-related activities may not always merit compensation. (See Civ. Code, § 3533 [“The law disregards trifles”]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 514 [“De minimis non curat lex is a maxim of ancient origin, ‘old’ even in the infancy of the nation”]; Layport v. Rieder (1939) 37 Cal.App.2d Supp. 742, 748, disapproved on other grounds in Heald v. Friis-Hansen (1959) 52 Cal.2d 834 [finding 8-cent difference in calculation of accrued interest to be “too trifling to be considered as grounds for requiring a trial”].) Still, once claimed time is established as compensable, the onus is on the employer to demonstrate that “reason” requires the employee to go uncompensated for the time she worked given California’s strong policy favoring compensation. (See Industrial Welfare Com., Wage Order No. 5-2001 (Jan. 1, 2001), Cal. Code Regs., tit. 8, § 11050, subd. 4(A) (hereafter Wage Order 5) [“Every employer shall pay to each employee wages . . . for all hours worked . . . .”].) The difficulty is discerning on what basis an agency or a judge’s “reason” might serve to limit the overarching policy incorporated into California law of fully compensating employees for the work they perform, with no stable technological impossibility on this front as a convenient way to settle whether to track even “split seconds.”

What reasonableness in this domain almost certainly implicates is whether such chronological morsels can be meaningfully perceived at all at the time they occur. That people sometimes struggle to perceive distinctions involving fractions of a second is inherent in human limitations. Modern computer displays, for example, generally refresh their screen at a rate of 60 hertz (each cycle lasting approximately 0.0167 seconds) because humans generally will no longer see a “flicker” on the screen at such a rate. (But see Davis et al., Humans perceive flicker artifacts at 500 Hz (2015) Scientific Reports 5, art. No. 7861, at p. 1