December 17, 2015
The de minimis rule is the concept of actual work time being so small an amount that it is not required to be paid. 29 C.F.R. § 785.47. This is a “rule” that has long been established by federal case law, which has been adopted by all state courts as well. The basic principle is that, under certain conditions, amounts of time are “trifles” that need not be paid.
The factors that must be considered in every case are:
1. The practical administrative difficulty of recording small amounts of time for payroll purposes.
2. The aggregate amount of compensable time.
3. The regularity of the additional work.
Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984). Employers often rely on this rule to their detriment because the rule assumes that the time at issue is indefinite and impractical to count administratively, which rarely is the case. 29 C.F.R. § 785.47. See Sanchez v. Bland Farms, 2011 U.S. Dist. LEXIS 67075 * 25-26 (S.D. Ga. 2011).
In applying these standards employers must always give serious consideration to how often the additional time is worked (“regularity”) and the amount of such time over extended periods (“aggregate amount”). Even small amounts of time that occur each workday can add up to significant amounts of unpaid wages over periods of only weeks or months. This is especially true in class and collective actions. Employers can be certain that governmental enforcement agencies, and many courts, will give significant attention to aggregate amounts of regularly worked time in amounts approaching or exceeding $100 in unpaid wages for each employee.