Part II · Compensable Time on the Sales Floor · Chapter 5

Off-the-Clock Work and the End of De Minimis

Use when employees perform unrecorded tasks before clock-in or after clock-out — opening, closing, lock-up, and security routines — and an employer asserts the time is too small to pay.

Few liabilities in California retail are as easy to incur, and as hard to defend, as unpaid off-the-clock work. The exposure does not come from grand misconduct; it comes from the routine — the four to ten minutes an associate spends after the final punch running the close-store sequence, setting the alarm, and waiting at a locked door to be let out. Federal law would shrug at increments that small. The FLSA de minimis doctrine lets employers disregard "insubstantial or inconsequential" periods of otherwise compensable time as a matter of recordkeeping practicality. California does not follow suit. The result is a structural trap: conduct a national retailer may lawfully leave unpaid in forty-nine states becomes, in California, compensable wages that aggregate across a workforce and a four-year limitations period and cascade into derivative wage-statement, waiting-time, and PAGA exposure (see Wage Statements, Final Pay & Penalties, PAGA).

#§ 5.1 The duty: control and "suffer or permit"

The obligation begins with the wage order's definition of compensable time. Under § 2, "hours worked" means "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." This is a disjunctive, two-pronged standard: time is compensable if the employee is under the employer's control or if the employer suffers or permits work — and the second clause expressly reaches work that was not required. The statutory backbone is § 510(a) (all hours worked, with daily and weekly overtime), read together with the minimum-wage and enforcement provisions the courts construe alongside it (Lab. Code §§ 1194, 1197). The control prong is the same one that makes mandatory exit bag-and-device searches compensable in Frlekin v. Apple — analyzed in full at Exit Searches & Bag Checks — and it does independent work here: an associate locked inside the store after clocking out, waiting for a manager to disarm the system and unlock the door, is subject to the employer's control even if not actively "working."

#§ 5.2 Troester: no de minimis for regular off-the-clock minutes

The controlling decision is the California Supreme Court's answer to a Ninth Circuit certified question in a case that arose from quintessential retail closing routines.

Case Troester v. Starbucks Corp. (Cal. 2018)

Holding. California's wage statutes and the IWC wage orders have not adopted the federal FLSA de minimis doctrine (Anderson v. Mt. Clemens Pottery; Lindow v. United States). A general background principle that "the law disregards trifles" (Civ. Code § 3533) exists, but it does not permit an employer to require employees to work off the clock for several minutes per shift on a regular basis without compensation. On the facts — 4 to 10 minutes of daily closing tasks (transmitting sales data, setting the alarm, locking up, walking coworkers to their cars), totaling roughly 12 hours 50 minutes and about $102.67 over 17 months — the de minimis rule had no application: "An 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." 5 Cal.5th at 846

What it does not hold. The Court expressly left 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," and did not decide whether some compensable time is "so minute or irregular that it is unreasonable to expect the time to be recorded." It did not abolish the de minimis concept; it held only that the federal version is not California law and does not reach regularly occurring, nontrivial, measurable time. The concurrences sketch the reserved zone: a "properly limited rule of reason" for time so brief, irregular, or hard to measure as to be impracticable to record — e.g., a rare software-glitch login delay, an off-hours scheduling text, or a retail employee briefly helping a customer while waiting for a ride — and confirm that "split-second absurdities" remain non-compensable. Troester v. Starbucks

The decision arose under Wage Order No. 5, but its statutory-construction reasoning turns on the "all hours worked"/"suffered or permitted" language common to the orders, including § 2 for mercantile employers. Two boundaries deserve emphasis. First, Troester is about regularity and measurability, not duration alone: ten minutes every closing shift is compensable, while a one-off, unmeasurable interruption may fall in the reserved zone. Second, Troester did not endorse the federal administrability rationale — it called Anderson's reasoning "questionable" and pointed to modern timekeeping technology, work restructuring, and fair estimation (surveys, time studies) as the answers an employer should reach for instead of nonpayment.

#§ 5.3 The retail fact patterns

Off-the-clock exposure clusters at the edges of the shift and at the door:

Closing and lock-up. Running the close-store/end-of-day procedure, counting or dropping the till, setting the alarm, shutting down systems, and locking the front door — frequently performed after the final punch. These are the Troester facts.
Post-clock-out security and shrink tasks. Bag and device checks, anti-theft walk-throughs, and manager escorts to the parking lot. Where these are required and enforced, the control prong makes them compensable under Frlekin v. Apple (see Exit Searches & Bag Checks).
Waiting to be let out. Time an associate spends locked in the store after clocking out, awaiting a keyholder to disarm and unlock, is time under the employer's control. § 2
Opening duties. Arriving before the punch to disarm, unlock, and ready the floor mirrors the closing problem at the start of the day.
App-based pre-shift work. Reviewing schedules, completing health attestations, loading the POS, or responding to required pre-shift prompts on a personal or store device before clocking in is "suffered or permitted" work if the employer requires or knowingly accepts it.

#§ 5.4 Exposure anatomy

The face value of any one violation is trivial — that is precisely what makes it dangerous. Small daily increments multiply by employees, by shifts, and by the limitations period, and each unpaid minute spawns derivatives. Unpaid time can push hours over the daily/weekly thresholds and go uncompensated at the overtime rate under § 510(a); it renders wage statements inaccurate (see Wage Statements); it can convert into waiting-time penalties at separation (see Final Pay & Penalties); and it is fuel for PAGA, where penalties accrue per employee per pay period (see PAGA and Exposure Anatomy).

Pitfall

"It's only a few minutes" is not a defense in California. Troester forecloses the de minimis argument for regularly recurring off-the-clock work, and a neutral-rounding policy will not paper over time the clock could have captured — see Rounding & Timekeeping. 11 The rounding question is the subject of Camp v. Home Depot U.S.A., Inc., 84 Cal.App.5th 638 (2022), in which review was granted by the California Supreme Court (S277518). While review is pending, the opinion is non-binding under Cal. Rules of Court, rule 8.1115(e), and may be cited only for its potential persuasive value and to show a conflict in authority; its holding — that an employer that can and does capture exact minutes must pay for them — is predictive, not settled law. Camp v. Home Depot Shepardize before relying on it.

#§ 5.5 Defense and compliance design

The compliant response to Troester is the one Starbucks itself ultimately adopted: restructure timekeeping so the first and last compensable tasks fall inside the punch, then enforce it.

Practice pointer

A defensible off-the-clock program:

Capture the first and last task. Sequence the workflow so associates clock in before the first opening duty and clock out after the last closing duty — including lock-up and any required exit screening. The punch should be the bookend, not an early cutoff.
Move timekeeping to the door. Site the time clock (or a mobile punch) so the final punch happens after security checks and lock-up, capturing wait-to-exit time rather than stranding it off the clock.
Write — and audit — the policy. Maintain a written rule that all work time, including opening/closing and pre-shift app tasks, must be recorded and paid; forbid managers from pressuring associates to work before or after the punch; and audit punch-to-alarm-arm and door-unlock logs for systematic gaps.
Address app-based pre-shift work. If associates must use an app before clocking in, either build the task into paid time or eliminate the requirement; do not knowingly accept unpaid pre-shift work.
Pay, then estimate honestly where capture is hard. Where a task genuinely resists precise recording, Troester points to fair estimation (time studies, surveys, neutral and fully compensatory methods) rather than nonpayment — but estimation is a fallback, not a substitute for capturing time you can capture. Troester v. Starbucks