No Such Thing as “De Minimis” Work: All Work is Work and Workers Deserve to be Paid 

We here at Herrmann Law fight for the rights of workers. We believe that all workers have a right to be paid and paid for ALL the work that they do. One currently raging battle in the fight for worker’s rights is over the so-called de minimis work rule. This rule allows employers to require or allow employees to engage in certain activities that take only a couple of minutes but, for which, workers are not paid. These tasks are often required just before clock-in or after clock-out. Examples include:

  • Opening/closing tasks like unlocking/locking door, deactivating/activating security systems, powering lights and equipment, etc. — yes, it does not take much time, but that time should be paid
  • Walking an employee to an automobile late at night or waiting with them until their ride arrives — yes, an admirable courtesy, but it is still work for which workers should be paid
  • Being subject to security checks of bags and belongings
  • Putting on or taking off protective clothing — particularly relevant since the COVID-19 pandemic
  • And more

These tasks may not take more than a couple of minutes, but over time, those minutes add up. Work is work and workers should be paid. Not paying for so-called de minimis work is a form of wage theft.

Under federal labor laws, employers are NOT required to pay for these short-duration tasks. At the federal level, the “de minimis” rule that was established by the US Supreme Court in 2014. See Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014).

By contrast — and fortunately for workers —  many states are in the process of abolishing or significantly restricting the de minimis rule. For example, Colorado recently changed its labor laws and now mandates that employers compensate workers for all “time worked.” Under the new Colorado rules, any task that takes more than one minute must be compensated as “time worked.” “Time worked” is now specifically defined to include:

“… putting on or removing required work clothes or gear (but not a uniform worn outside work as well), receiving or sharing work-related information, security or safety screening, remaining at the place of employment awaiting a decision on job assignment or when to begin work, performing clean-up or other duties “off the clock,” clocking or checking in or out, or waiting for any of the preceding …”

See COMPS Order Rule 1.9.1.

In Pennsylvania, the state Supreme Court has accepted a case for decisions that will explicitly address whether the federal de minimis rule applies to Pennsylvania labor laws. See news report here. We are hopeful that the court will make the correct decision.

In California, the state Supreme Court has abolished any bright-line de minimis rule and has recently held that a five-factor test should be applied to determine whether small-increment work is compensable. The factors are:

  • Whether the tasks are voluntary or employer mandated and enforced through disciplinary measures
  • Location
  • Degree of the employer’s control
  • Whether the tasks primarily benefits the employee or employer

See Frlekin v. Apple Inc., 8 Cal. 5th 1038 (Cal. Supreme Court 2020). This is a legal doctrine that still gives employers some “wiggle-room” for very minor work but significantly protects workers and their right to be paid.

Call the Employee Rights Attorneys at Herrmann Law Today

If you think your employer has been underpaying you or not paying you for ALL the work you have worked, or if you think your employer has engaged in other forms of wage theft, call the Employee Rights attorneys at Herrmann law. We are proven, experienced, employee-focused attorneys representing workers across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229.

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