The de Minimis Rule: Trifles of Time

-Trifles of time create the highlights of life. Trifles of overtime, on the other hand, can create havoc in the workplace.
It´s 5:03 p.m. Your employee´s shift was over at 5:00 p.m. He hasn´t clocked out yet. Do you owe your employee three (3) minutes worth of overtime? A simple question with a not-so-simple answer.

Trifles of time create the highlights of life. Trifles of overtime, on the other hand, can create havoc in the workplace.

General Rule: The general rule is that an employer must pay an employee overtime "for all hours worked in excess of eight (8) hours a workday." Order 1-2000, section 2(H). However, "hours worked" is defined as "time during which an employee is subject to the control of any employer and includes all of the time the employee is suffered or permitted to work." Id. An exception to the general rule often lies where the overtime in question consists of merely minute increments of time worked past an eight (8) hour day.

The de Minimis Rule: Insignificant time periods beyond the scheduled workday are termed "trifles" and are governed by the "de minimis rule." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946); Lindow v. United States, 738 F.2d 1057 (9th Cir., 1984). The de minimis rules states that, when suing for overtime compensation under the Far Labor Standards Act or otherwise as here, "[w]hen the matter at issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. The amount of overtime must be substantial to be compensable.

The Test: The three-part de minimus test is as follows: (1) the amount of overtime at issue including the aggregate amount of overtime; (2) the regularity of the overtime at issue; (3) the practical administration of recording the overtime at issue. Lindow, supra at 1063.

What is considered "de Minimis"?: Although there is no precise rule, ten (10) minutes appears to be the general rule for the de minimis standard (i.e. less than ten minutes overtime worked does not need to be compensated if the rest of the test is met). "There is no precise amount of time that may be denied compensation as de minimis. No rigid rule can be applied with mathematical certainty...Rather, common sense must be applied to the facts of each case. Most courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable." Lindow, supra at 1062. It has been held that up to 15 minutes extra day was not enough to overcome the de minimis rule.

How often do you have to work a few minutes overtime?: While the de Minimis Rule is an exception to the general rule, there is also an exception to the exception. Isn´t that what the law is all about after all - exceptions to the exceptions to the exceptions? An employer is not allowed to arbitrarily fail to count hours worked if regularly required as this would be considered to "produce capricious and unfair results." Addison v. Huron Steve Corp. (1953) 204 F.2d 88, 95; Hawkins v. E.I. duPont de Nemours & Co. (1955) 12 W.H. 448. The courts consider the aggregate claim by adding up the total amount of small increments of time overall the Plaintiff is claiming. For instance, it was held that thirty (30) minutes of overtime a day for 1 ½ years was not de minimis and must be reimbursed in the form of overtime. Glenn L. Martin Nebraska Co. v. Culkin, 197 F.2d 981, 987 (8th Cir.). However, if the overall aggregate claim is also an insignificant amount given the length of the period of time, the court should "dismiss it as groundless and unreasonable." Lindow, supra at 1063. If a Plaintiff is required to work a certain small amount of overtime everyday or on a regular basis, the Court will take this into consideration. However, isolated incidents or small amounts of overtime on a sporadic basis still meet the test. Lindow, supra at 1063.

Should an employer be required to keep track of these minimal amounts of overtime?: The public policy behind the de minimis rule is the "impracticality of administration." Recording of these minute time periods are often disregarded due to the "impracticality of administration." It has been specifically held that, "[t]he de minimis rule is concerned with the practical administrative difficulty of recording small amounts of time for payroll purposes...overtime compensation for ´a few seconds or minutes´ is de minimis ´in light of the realities of the industrial world.´" Lindow, supra at 1062-1063; 29 C.F.R. section 785.47; Anderson, supra at 692.

What were you doing today that caused you to clock out three minutes late?: Meal periods, travel time to and from work, time spent voluntarily in training programs, lectures, meetings and in internship programs not for the benefit of the employer are specifically excluded. Id. Additionally, employees reporting early voluntarily to, for example, engage in social conversation prior to shifts are not entitled to overtime. FLSA of 1938, sections 3(g) and 7(a); 29 U.S.C.A. section 203(g) and 207(a).

How do you calculate the amount of overtime owed for minute increments?: Overtime is usually rounded to the nearest five minutes, one-tenth or quarter hour for purposes of calculating the number of hours worked. 29 CFR section 78, 5.48(b). Five-minute segments are the norm. Id.

In the end, this rule appears yet to be tested at the local level. As such, the rules are always pliable by the Courts. Keep in mind that any more than a de minimis amount of overtime or repeated days of de minimis overtime are unquestionably compensable. In the meantime, encourage your employee to use his three (3) minutes more wisely. Listen to a favorite song on the radio, beat the traffic or take a leisurely walk to his car and enjoy the California sun.

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