In the supreme court of california

[as of July 24, 2018]¹ [indicating that, previous to this study indicating that humans could perceive flicker at 500 hertz, it was thought that humans could not perceive flicker above 50 to 90 hertz, depending on the intensity and contrast of the picture].) In terms of reaction time, at least one study reveals the average reaction time of medical students to visual stimuli was approximately 0.25 seconds. (Jain et al., A comparative study of visual and auditory reaction times on the basis of gender and physical activity levels of medical first year students (2015) 5 Int’l J. Applied

Basic Medical Research 124-127

PMC4456887> [as of July 24, 2018]; see also id. [also referencing to 0.19 seconds as the “accepted” mean reaction time to light for college age students].) It seems unlikely the Legislature’s purpose in enacting California’s fair compensation laws encompassed compensation of employees for additional work performed on such a time scale. (See Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co. (1992) 505 U.S. 214, 231 [noting that “ ‘the law cares not for trifles’ ” is “part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept”].) It is far from clear that a reasonable rounding strategy, even one rounding to the nearest second, would cut in favor of counting such amounts of time. (Cf. See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 892 [rounding time to nearest six minutes].) Were such a rounding rule justified, it would leave the potential problem in class actions of allocating awards to claimants based on fractional cents. As a countervailing concern, a minute or even dozens of seconds may seem trifling to an employer even if — as the majority opinion points out — these small moments appreciably impact employees at the time.

In the realm of time people can ordinarily perceive, any sensible evaluation will likely depend largely on the context in which the work at issue occurs, along with considerations rooted in privacy law or collective bargaining agreements. (See, e.g., Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286-288 [discussing employees’ right to privacy under the Cal. Const. and the common law]; Carpenter v. U.S. (2018) 585 U.S. __, __ [138 S.Ct. 2206, 2210] [recognizing a 4th Amend. reasonable expectation of privacy in “the whole of [a person’s] physical movements”]; 18 U.S.C. §§ 2510 et seq., 2701 et seq. [providing protections implemented by the federal Electronic Communications Privacy Act of

1986 that limit the unauthorized interception and retrieval of electronic communications, with some exceptions]; Lavitt, Monitoring Employee Whereabouts: Collective Bargaining Implications of RFID and GPS Technologies in the Workplace (Nov. 4, 2011) 5th Annual ABA Section of Labor & Employment Law Conference, at pp. 11-13

content/dam/aba/administrative/labor_law/meetings/2011/ac2011/155.authcheckdam.pdf> [as of July 24, 2018] [discussing cases where collective bargaining agreements addressed GPS and other employee tracking systems].) So we must be wary of any future holding that would incentivize a drastic increase in the scope and intensity of employee monitoring, which might systematically erode employees’ ability to find even a moment of privacy in their lives. (Kesan, Cyber-Working or Cyber-Shirking?: A First Principles Examination of Electronic Privacy in the Workplace (2002) 54 Fla. L.Rev. 289, 320 [noting fears that excessive monitoring of employees creates essentially “ ‘electronic sweatshop[s]’ ”].) This is especially true as privacy issues have launched to the national stage and resulted in new laws in our state safeguarding privacy in our personal data, albeit in the consumer law context. (See Consumer Privacy Act of 2018, Civ. Code, § 1798.100 et seq. (added by Stats. 2018, ch. 55, § 3, eff. Jan. 1, 2020) [granting any consumer, defined as “a natural person who is a California resident,” certain rights with respect to personal data collected by businesses].) At the very least, our compensation rulings should not require subcutaneous microchips, pervasive digital surveillance of all employees’ actions and communications, or other employment monitoring systems more at home in a cyberpunk novel than a modern place of employment. (See, e.g., Mo. Rev. Stat., § 285.035(1) [“No employer shall require an employee to have personal identification microchip technology implanted into an[] employee for any reason”].)

The majority here does not reach such a troubling result. Instead it observes that employers have the burden of tracking potential work time occurring on a “regular basis” or that is “a regular feature of the job,” and in doing so, rightly focuses on reasonable solutions such as smartphone apps or rounding strategies for tracking these regular amounts of time. (Maj. opn., ante, at p. 20.) The unpredictable length and occasional nature of the additional work at issue may affect the viability of some timekeeping systems and rounding strategies — though here too, other monitoring or data analysis approaches may often resolve the difficulties.

In addition to discussing the potential solutions an employer might adopt, the majority’s opinion emphasizes how the work performed here was “regular” in concluding that it was compensable. (Maj. opn., ante, at pp. 20-21.) The focus on “regularity” is, to some extent, based on technological concerns — it seems more practical to require an employer to track work time that is predictable. Yet regularity also may act as a proxy for the principle that employees should always be fully compensated for core or expected aspects of their work. The standard for what is compensable work time in California is relatively broad and includes all time for which the employer knew or should have known that the employee was working on the employer’s behalf. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584-585 [interpreting wage order language that makes compensable all time “ ‘the employee is suffered or permitted to work, whether or not required to do so’ ”].) Concepts of fair dealing weigh against allowing an employer to knowingly require an employee to perform a task, and then claim that said task was “de minimis” after the fact. In contrast, there may be occasional activities involving far less time than was at issue here, peripheral to the employee’s core job function, and undertaken for reasons other than service to the employer.

As easily available technologies can increasingly track our every movement and moment, California law still protects workers from being forced to undertake work that won’t be paid. That protection is not diluted if it remains possible for employers to argue against liability for moments so fleeting that they are all but imperceptible. Courts may sometimes find employers’ arguments to have merit in light of a context-dependent inquiry focused on the extent to which the time in question can be meaningfully perceived, the quantity and regularity of the uncompensated work over time, as well as the nature of the employee’s job responsibilities and related factors. What we know is that regular minutes worked by employees off the clock do not come close to being treatable essentially as rounding errors under a sensible application of a rule of reason. And issues of employee privacy will no doubt be subject to further deliberation among employers, employees, and legislators. Yet whatever the merits of sophisticated employee monitoring schemes, California law stops well short of requiring employer analysis of every fractional second as part of an unsparing effort to discern what time is compensable.

CUÉLLAR, J.


CONCURRING OPINION BY KRUGER, J.

I concur in the majority opinion, which I have signed. I write separately to address the central question the opinion leaves open: whether, in circumstances different from those presented in this case, the de minimis principle may apply to California wage and hour claims. (See maj. opn., ante, at pp. 2, 13, 21.)

As the majority opinion explains (ante, at pp. 12–13), the maxim de minimis non curat lex represents a background legal principle of ancient standing. The 1872 Legislature codified the maxim in our Civil Code (Civ. Code, § 3533), and like other such maxims it serves as an interpretive tool to aid in the “just application” of facially broad statutory language. (Id., § 3509; see National Shooting Sports Foundation, Inc. v. State of California (2018) 5 Cal.5th 428, 433.) One recognized function of the maxim is to avoid litigation over trivial harms, where the costs of litigating the correct measure of a remedy may exceed the benefits of providing the remedy in the first place. Simply put, “[t]he maxim signifies ‘that mere trifles and technicalities must yield to practical common sense and substantial justice . . . .’ ” (Nemerofsky, What Is a “Trifle” Anyway? (2001–2002) 37 Gonz. L.Rev. 315, 323.) The de minimis doctrine operates, in essence, as a “rule of reason.” (Veech & Moon, De Minimis Non Curat Lex (1947) 45 Mich. L.Rev. 537, 556, 567; see id. at pp. 543–544.)

Here, we consider provisions of California labor law that mandate compensation for “[a]ny” (Lab Code, § 510, subd. (a)) and “all” time worked (Industrial Welfare Com., Wage Order No. 5, subd. 2(K)). The breadth of the language reflects California’s vital interest in ensuring that employers fully compensate their employees for the work they perform. (See, e.g., Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, 326 [citing California’s strong public policy “in favor of full and prompt payment of wages due an employee”].) But the law, fairly construed, also leaves room for application of a background rule of reason. A sensible application of our law does not encompass claims for negligible periods of time that cannot reasonably be measured or estimated with a fair degree of accuracy.

The United States Supreme Court described this sort of a commonsense limitation on wage claims when it held that “[s]plit-second absurdities” are to be disregarded in calculating compensable working time. (Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692.) Nothing in the majority opinion calls into question whether California law observes the same basic limitation. (Maj. opn., ante, at p. 17.) The majority opinion instead correctly holds that insofar as the federal de minimis doctrine has been applied more broadly to include individually or cumulatively significant periods of time that can reasonably be measured or estimated, the federal doctrine does not represent the law of California. (Id. at pp. 8–11.) As the majority says, “[a]n employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine.” (Id. at pp. 19–20.)

To say that the de minimis doctrine cannot excuse failing to compensate employees under these circumstances is not to say that the de minimis doctrine has no role to play under any circumstance; a properly limited rule of reason does have a place in California labor law. The overarching rule is, and must be, that employees are entitled to full compensation for time worked, and employers must make every reasonable effort to ensure they have adequately measured or estimated that time. But the law also recognizes that there may be some periods of time that are so brief, irregular of occurrence, or difficult to accurately measure or estimate, that it would neither be reasonable to require the employer to account for them nor sensible to devote judicial resources to litigating over them.

The claim here involves nontrivial, regularly occurring periods of work, and thus is not subject to any such properly limited de minimis rule. And I agree with the majority that without an appropriate factual record before us, this is not the case for detailed delineation of the rule’s proper scope. But it is not difficult to imagine a number of scenarios in which such a rule might apply, depending on the circumstances:

• 
  An employer requires workers to turn on their computers and log in to an application in order to start their shifts. Ordinarily this process takes employees no more than a minute (and often far less, depending on the employee’s typing speed), but on rare and unpredictable occasions a software glitch delays workers’ log-ins for as long as two to three minutes.
  
• 
  An employer ordinarily distributes work schedules and schedule changes during working hours at the place of employment. But occasionally employees are notified of schedule changes by e-mail or text message during their off hours and are expected to read and acknowledge the messages.
  
• 
  After their shifts have ended, employees in a retail store sometimes remain in the store for several minutes waiting for transportation. On occasion, a customer will ask a waiting employee a question, not realizing the employee is off duty. The employee — with the employer’s knowledge (see maj. opn, ante, at p. 9) — spends a minute or two helping the customer.
  

In situations like these, a requirement that the employer accurately account for every second spent on work tasks may well be impractical and unreasonable; if so, a claim for wages and penalties based on the employer’s failure to do so would be inconsistent with California labor law, construed with the guidance of the background rule codified in Civil Code section 3533.

California law does, in short, make some allowances based on considerations of practicality and reasonableness. It does not, however, permit an employer to require an employee to regularly work for nontrivial periods of time without providing compensation.
KRUGER, J.

I CONCUR:

GRIMES, J.^*
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Troester v. Starbucks Corporation

__________________________________________________________________________________
Unpublished Opinion

Original Appeal

Original Proceeding XXX on request pursuant to rule 8.548, Cal. Rules of Court

Review Granted

Rehearing Granted
__________________________________________________________________________________
Opinion No. S234969

Date Filed: July 26, 2018

__________________________________________________________________________________
Court:

County:

Judge:
__________________________________________________________________________________
Counsel:
Setareh Law Group, Shaun Setareh, Thomas Segal, H. Scott Leviant; The Spivak Law Firm, David Spivak; Law Offices of Louis Benowitz, Louis Benowitz; Marlin & Saltzman and Stanley D. Saltzman for Plaintiff and Appellant.
Anna Kirsch and Hina Shah for Women’s Employment Rights Clinic of Golden Gate University School of Law, Bet Tzedek, Centro Legal de la Raza, National Employment Law Project and Legal Aid at Work as Amici Curiae on behalf of Plaintiff and Appellant.
The Kralowec Law Group, Kimberly A. Kralowec; Kingsley & Kingsley and Ari J. Stiller for Consumer Attorneys of California and California Employment Lawyers Association as Amici Curiae on behalf of Plaintiff and Appellant.
Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Gregory W. Knopp, Mark R. Curiel and Jonathan P. Slowik for Defendant and Respondent.
Sidley Austin, David R. Carpenter and Sonia A. Vucetic for California Retailers Association as Amicus Curiae on behalf of Defendant and Respondent.
Horvitz & Levy, Robert H. Wright, Felix Shafir and Lacey L. Esudillo for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendant and Respondent.
Sheppard, Mullin, Richter & Hampton, Karin Dougan Vogel, Daniel De La Cruz, Richard J. Simmons and Jason W. Kearnaghan for Chamber of Commerce of the United States of America as Amicus Curiae on behalf of Defendant and Respondent.
Mitchell, Silberberg & Knupp, Emma Luevano and Justine Lazarus for Employers Group and California Employment Law Council Amici Curiae on behalf of Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):
Stanley D. Saltzman

Marlin & Saltzman

29800 Agoura Road, Suite 210

Agoura Hills, CA 91301-1555

[phone]
Rex S. Heinke

Akin Gump Strauss Hauer & Feld

1999 Avenue of the Stars, Suite 600

Los Angeles, CA 90067

[phone]

*^* Associate Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

1^ All Internet citations in this opinion are archived by year, docket number, and case name at .

*^* Associate Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

SEE CONCURRING OPINIONS