Off the Clock Shouldn't Mean Off the Paycheck: De Minimis Time in California

By Dana Kravetz Firm Managing Partner, Michelman & Robinson, LLP | November 11, 2018

Thirty years ago – nearly a decade before I was sworn in as a member of the bar – I had a job bussing tables at a swanky restaurant in beautiful Del Mar, California. I showed up for work on Friday and Saturday nights – and Sundays for brunch – and made myself busy clearing plates, utensils, wine glasses and anything else diners wanted out of their way. The tips were nothing to sneeze at, and I couldn't have asked for a better part-time gig while in college in San Diego. 

But there was something about the job that makes me scratch my head all these years later. On my night shifts, I closed the restaurant and was the last to leave. Yet before heading home, my responsibilities included bundling up trash from the kitchen and hauling the bags to dumpsters located on the opposite end of the building. Separately, I had to spray off the rubber mats that covered the kitchen floor and hang them over an outside railing to dry overnight. Here's the rub. I wasn't to do any of these tasks – which took me about 10 minutes, max – without first clocking out, setting the restaurant's alarm and locking up.

Week in and week out, the same routine: punch the clock, ready the alarm, close the locked kitchen door behind me and hustle outside with my trash and mats. Never, however, was I compensated for this de minimis time. Fast forward and I'm now a longtime hospitality and management-side employment lawyer, and in the wake of the recent ruling in Troester v. Starbucks Corporation – in which the California Supreme Court determined that employees who routinely handle off-the-clock tasks, no matter how negligible, are entitled to be paid for them – I understand, more than ever, that I was appreciably underpaid way back when.

No doubt about it, Troester is big news for all employers, those in the hotel and resort space included, as employees have new fodder to sue for unpaid de minimis time, now with the backing of the Golden State's highest court.

The Troester Ruling

In Troester, it was held that the so-called "de minimis defense" does not, for the most part, apply to wage claims brought pursuant to the California Labor Code. In the world of employment law, this is mildly earth shattering.  Courts had long viewed the defense, frequently advanced on behalf of employers, as effective in defeating single plaintiff and class action claims for unpaid wages as they related to the seconds or minutes employees spent outside scheduled work hours to change clothes, don or remove safety equipment, turn equipment on or off and the like. No longer is this the case, at least in California.

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Human Resources: An Era of Transition

Traditionally, the human resource department administers five key areas within a hotel operation - compliance, compensation and benefits, organizational dynamics, selection and retention, and training and development. However, HR professionals are also presently involved in culture-building activities, as well as implementing new employee on-boarding practices and engagement initiatives. As a result, HR professionals have been elevated to senior leadership status, creating value and profit within their organization. Still, they continue to face some intractable issues, including a shrinking talent pool and the need to recruit top-notch employees who are empowered to provide outstanding customer service. In order to attract top-tier talent, one option is to take advantage of recruitment opportunities offered through colleges and universities, especially if they have a hospitality major. This pool of prospective employees is likely to be better educated and more enthusiastic than walk-in hires. Also, once hired, there could be additional training and development opportunities that stem from an association with a college or university. Continuing education courses, business conferences, seminars and online instruction - all can be a valuable source of employee development opportunities. In addition to meeting recruitment demands in the present, HR professionals must also be forward-thinking, anticipating the skills that will be needed in the future to meet guest expectations. One such skill that is becoming increasingly valued is “resilience”, the ability to “go with the flow” and not become overwhelmed by the disruptive influences  of change and reinvention. In an era of transition—new technologies, expanding markets, consolidation of brands and businesses, and modifications in people's values and lifestyles - the capacity to remain flexible, nimble and resilient is a valuable skill to possess. The March Hotel Business Review will examine some of the strategies that HR professionals are employing to ensure that their hotel operations continue to thrive.