©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 209 7.4.2 Workday and workweek calculation For purposes of computing daily and weekly overtime pay, employers must count the hours worked within each “workday” and “workweek.” Employers often designate the workweek as beginning at midnight on Sunday and the workday to begin at midnight each day, though the workday and workweek can begin at any time the employer designates (or at different times for different groups of employees). Time worked within the designated workday counts toward daily overtime, and time worked within the designated workweek counts toward weekly overtime. California courts have found “artificial” workweek designations unlawful if those designations aim to avoid overtime obligations. One Court of Appeal decision held that employees who worked 14-day shifts from Tuesday to Tuesday on boats could recover seventh day overtime compensation on both the seventh and 14th days of each consecutive 14-day work period, even though the employer’s designated workweek began on Monday at 12:01 a.m. and ended on Sunday at midnight, as the Court of Appeal found that the employer had artificially designated its workweek to avoid overtime obligations.93 7.4.3 The de minimis doctrine—Not Federal courts applying the FLSA have recognized that some work time off the clock is too short, sporadic, or difficult to record to be compensable.94 This time is considered de minimis (too trivial to care about). De minimis is a doctrine rather than an affirmative defense that a defendant must plead.95 Exemplifying the doctrine in action are rulings that the time spent to undergo certain bag checks while exiting a retail store was de minimis and thus not compensable.96 But does the judicially created de minimis doctrine, originating in cases interpreting federal law, also apply in California? Although the DLSE and the Court of Appeal long acknowledged that the de minimis doctrine applies under California law,97 the California Supreme Court, in its 2018 Troester v. Starbucks Corp. decision,98 concluded otherwise. The case came to the Supreme Court on a referral from the Ninth Circuit, which certified this question that the Supreme Court agreed to review: “Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197?”99 Troester is another classic example of California public policy deviating from analogous federal policy, with the result that the California standard is more onerous on employers. Troester first held that California statutes and regulations have not adopted the federal de minimis doctrine. Troester emphasized that courts “liberally construe the Labor Code and wage orders to favor the protection of employees,” and that the California Supreme Court has “recognized the divergence between IWC wage orders and federal law, generally finding state law more protective than federal law.”100 Moreover, Troester held that although the de minimis doctrine exists as a general background principle, it would not apply to the facts at hand, where the employer required the employee to work off the clock several minutes per shift. Troester specifically declined to “decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.”101 Meanwhile, Troester was generally skeptical of the de minimis doctrine: “one of the main impetuses behind the … doctrine in wage cases is ‘the practical administrative difficulty of recording small amounts of time for payroll purposes.’ … But employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring worktime. … [T]echnological advances may help with tracking small amounts of time. … [W]e
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