TROESTER v. STARBUCKS CORPORATION

Respondent’s Answer Brief on the Merits

Cal.January 25, 2017

$234969 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DOUGLAS TROESTER, PlaintiffandAppellant, SUPREME COURT . FILED STARBUCKS CORPORATION, JAN 2 6 2017 Defendant and Respondent. Jorge wavarrete Clerk Deputy ON A CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CASE No. 14-55530 RESPONDENT’S ANSWERBRIEF ON THE MERITS AKIN GUMP STRAUSS HAUER & FELD LLP *REX S. HEINKE (SBN 066163) RHEINKE@AKINGUMP.COM GREGORY W. KNoppP(SBN 237615) GKNOPP@AKINGUMP.COM MARKR. CURIEL (SBN 222749) MCURIEL(@AKINGUMP.COM JONATHANP. SLOWIK (SBN 287635) JPSLOWIK@AKINGUMP.COM 1999 AVENUE OF THE STARS,SUITE 600 Los ANGELES, CALIFORNIA 90067 TELEPHONE: 310-229-1000 FACSIMILE: 310-229-1001 ATTORNEYS FOR DEFENDANT AND RESPONDENT STARBUCKS CORPORATION S234969 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DOUGLAS TROESTER, Plaintiffand Appellant, v. STARBUCKS CORPORATION, Defendant and Respondent. ON A CERTIFIED QUESTION FROM THE UNITED STATES COURTOF APPEALS FOR THE NINTH CIRCUIT CASE No. 14-55530 RESPONDENT’S ANSWERBRIEF ON THE MERITS AKIN GUMP STRAUSS HAUER & FELD LLP *REX S. HEINKE (SBN 066163) RHEINKE@AKINGUMP.COM GREGORY W.Knopp (SBN 237615) GKNOPP@AKINGUMP.COM MARKR. CURIEL (SBN 222749) MCURIEL@AKINGUMP.COM JONATHANP. SLOWIK (SBN 287635) JPSLOWIK@AKINGUMP.COM 1999 AVENUE OF THE STARS, SUITE 600 Los ANGELES, CALIFORNIA 90067 TELEPHONE: 310-229-1000 FACSIMILE: 310-229-1001 ATTORNEYS FOR DEFENDANT AND RESPONDENT STARBUCKS CORPORATION IL. II. TABLE OF CONTENTS Page INTRODUCTION ooo. ceeecesecnseseeeseessessnecessseeeeesseseessesseeesseeseeas 9 BACKGROUND 0... eiecccsceccenesseeseteceeeeaeeeeesaaeesssaaeesseeseaseessaseeseeees 10 A. Troester Allegedly Worked Brief Moments “Off- The-Clock” On “Closing Shifts.” ..........ccesccccssscessesseresseeees 10 B. Troester SUes........cceeeesseeecseecesececessceeeessueeeeessnesseessesseneeenss 11 C. The District Court Grants Summary Judgment On All Of Troester’s Claims...........ccecccssccceesssestesneessneenens 12 D. The Ninth Circuit Requests That This Court Decide Whether The De Minimis Rule Applies To California Wage And HourClaims.............::ccceesseeseees 15 ARGUMENT 00... eeeeeseseeeseeconseseeseesessecaceeseeeesneeeesstensecsesasensseaes 15 A. The De Minimis Rule Has Long Been A Central Component OfCalifornia Law, So It Is Not A Federal Rule. oo... cei eeeecsscsssseseeceeeeeesseeessneeeeeseeesasssesseeeseeeaes 16 B. The De Minimis Rule Applies To California Wage Claims. .........ccceccececccsssseesceseeeceaneceeeeeescseesssesesseeeseesaes 19 1. Courts Have Regularly Applied The De Minimis Rule To California Wage Claims. ............... 19 2. California Courts Regularly Look To Federal Guidance Where There Is No Conflict. 0... ceeeeeeeeeteeeesa saevseuseeeaeensueesadesaeeeeaseaseaeens 20 3. The DLSE Has Long Endorsed The De Minimis Rule, Which The Legislature Has Ratified...eeeceeecseseeceesseeeseeeeeesseeeeecesaeeesetseseneaeenes 26 4, The De Minimis Rule Applies To Statutory Wage Claims, Not Just Equitable Claims. ......0....cceceeeseceeeeseeeeeeteeetneensneenenees 28 5. The De Minimis Rule Is No Less Relevant TOday. o.....cccccccesccecesseceeeeeececedeeeeeeensaneaeeeeesesaeesaeeeesentees 30 2 6. The De Minimis Rule Will Not “Injure” Employees. .........c:cccscsssssssesseesecessseessesssssssesessceseeneeas 33 7. Troester’s Argument That Employers Will “Abuse” The De Minimis Rule Is Unfounded. 00... eeceeeeseeesceceeceeesessesseesaessteneeeses 34 TV. CONCLUSIONwooceeeesseeseteeseneescteesseeeeseesesssseesussseessessseeses 36 TABLE OF AUTHORITIES Page(s) CASES A.H. Phillips, Inc. v. Walling (1945) 324 U.S. 490 oooecccccccccssscsssecsesccesssseeesecesestecsecsseessssavenreees 24 Addison v. Huron Stevedoring Corp. (2d Cir. 1953) 204 F.2d 88 wooo ccccccsssccsssseessecesserecsseestseecestncees 34, 35 Alvarado v. Costco Wholesale Corp. (N.D.Cal., June 18, 2008, No. C 06-04015 JSW) 2008 WL QZATT3BO3 oo ccccccccccccssssseseescssnsscsssecsusssacssesesssnscesececeeseeseceueaseessuneceeteseseensanaes 19 Alvarez v. IBP, Inc. (9th Cir. 2003) 339 F.3d 894 ooo ccccccsssccesssescceeecesssecssecseseeceusesnnecees 20 Anderson v. Mt. Clemens Pottery Co. (1946) 328 US. 680 oo. ccccccccsssccsssesseccessnseeceessesacesseeeeeeeeenes passim Armenta v. Osmose, Inc. (2005) 135 CalApp.4th 314... cccccscccsseessssreessesstecseessssessnsessseseees 23 Augustus v. ABMSecurity Serv., Inc. (Dec. 22, 2016, S224853)= Cal.S5th= [2016 WL 7407328, at *2] oo. cecscccccsssesesssceccssecssecsssssecsssscuseovesersceateegeslseseeecsaseees 26 Bamonte v. City ofMesa (9th Cir. 2010) 598 F.3d 1217occcccsssceeceeecessessssessssesssnesesens 20 Bermudez v. Fulton Auto Depot, LLC (2009) 179 Cal.App.4th 1318 oo...cccccssccsesssecescecesssesssessssesersenserens 18 Brinkerv. Superior Court | | - . (2012) 53 Cal.4th 1004 o.oo.cccccsscccesssssteceeseeeccesescsansuserssesaces 26 Building Material & Const. Teamsters’ Union, Local 216 v. Farrell (1986) 41 Cal.3d 651 oo... ccc ccccsccssssesseccsssseeeesssnsneseeessaeesses 9, 20, 21, 23 Carlsen v. US. (Fed. Cir. 2008) 521 F.3d 1371 oo. ccccescessseescsnceceesescssessseeeensesseeeenes 15 Cervantez v. Celestica Corp. (C.D.Cal. 2009) 618 F.Supp.2d 1208 oo...ec eccscesesseeteesssessessseeseesees 19 ClaremontPolice Officers Ass’n v. City ofClaremont (2006) 39 Cal.4th 623 oo.cesccccssssessecsssesseeecsescessssesseessssessesseesseeaes 18 Connell v. Higgins (1915) 170 Cal. S40oeccseseseeecssessesseessseeessessessssesesseseeaeesseereeees 18 Corbin v. Time Warner Ent’t-Advance/Newhouse P’ship (9th Cir. 2016) 821 F.3d 1069oocsccctccesecereessseescessesseeeeees 19, 30 Cornn v. UPS, Inc. (N.D.Cal., Aug. 26, 2005, No. C03-2001 TEH) 2005 WL 207209 1 oe eceececeeseeeneessseseceessesesseeeenseceaeesssseseeseeessessaessssesssterssseeaeeees 19 De Asencio v. Tyson Foods, Inc. (3d Cir. 2007) 500 F.3d 361 oo.cccceseesssceeessseeesseeeeessssecsseeesseesnees 15 Gallamore v. Workers’ Comp. Appeals Bad. (1979) 23 Cal.3d 815 oecccceseececssssecnscesssseeecsseeecsesseeeesesscssteeseeseeens 29 Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468 ooocecsecnecerecereesseeeseaeecaeseesseeesseesseessreeatens 17 Ghory v. Al-Lahham (1989) 209 CalApp.3d 1487 ooo... ceeccsecssecsseceseeeseseessseseeesseesseseaees 28 Gillings v. Time Warner Cable LLC (9th Cir. 2014) 583 F.App’x 712.......... Leceeectereeseceeeecerseetees? 19, 23, 33, 34 Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508 .0.. ee eeeceeseeseessseeceseeeseecsesseeesanenssenes 19, 30 Harris v. Time, Inc.. . Bo , (1987) 191 Cal.App.3d 449oeNe taeeeaeeseneeeseesdeceeceeeeeseaeeeeeeeeneeeaes 19 IBP v. Alvarez (2005) 546 US. 20 eeeeccccceseetseceseteeeeteeecenaeesscaeesaeeeaeeessaeeteaeeesseeees 21 In re Marriage ofCrook (1992) 2 CalApp.4th 1606 ooo... eesccceseeeeseceeeetseeeareeseeeeeteeseneeesatens 18 Kenyon v. Western UnionTel. Co. (1893) 100 Cal. 454 oo. ceccccessessseeeseesceseeceeeseeessateeessesaeseneeeseeeeneres 29 Knoke v. Swan (1935) 2 Cal.2d 630 oo... cccccssssessscccsssecssesesssnecesssesecsseeeesstesseecsesesseasenss 29 Lindow v. U.S. (9th Cir. 1984) 738 F.2d 1057 oo. eccccccsessseccessseesssesesecestseeesseees passim Lueras v. BAC Home Loans Servicing, LP (2013) 221 CalApp.4th 49 oo.ccscccscsseccsssseccssseserseessnsecessseeeessess 18 Martinez v. Combs (2010) 49 Cal.4th 35 woo. cccecccsscecsseccceessseeecesssesseenessserensees 24, 25, 26 Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833 oo... ccccsccsscsseecssseessssseeessessesssseeseressneesseesessaees 24 Mitchell v. JCG Industries, Inc. (7th Cir. 2014) 745 F.3d 837 occcccsccccsessscccesseessseessssceesssessseseceeees 16 Moore v. Cal. State Bd. ofAccountancy (1992) 2 Cal.4th 999oicccceessecneeeseeeeseeseseseeceseceeseseeteeseseesessaeens 27 Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 ooo eesseeesseeceeeseeeseeeeeeaceeseeseeseeeaenetsees 20, 23, 27 Nye & Nisson v. Weed Lumber Co. (1928) 92 Cal.App. 598 ......ccccssecsccsecsesneeseeesaeceeessssesseeseessessesatenseeenees 19 Overholser v. Glynn (1968) 267 Cal.App.2d 800 oo...eeeeceeeeseeceeseeeeeeeseesesaeeceeeetseeeaaeesesnes 19 Pacific Intermountain Express v. Nat'l Union Fire Ins. Co. (1984) 151 Cal.App.3d 777 oo. cscccssseseesneeseeseessssseesseesseseerseseeens 24, 25 People v. Armstrong (2016) 1 Cal. Sth 432, 452.0 cceeseeteereeteesa heveceeseeeeeeesneetevaseseeneeeevee 18 People v. Mendoza (2000) 23 Cal.4th 896 0000... eeeecsseesessceseceteeesecnersesssessesseesateersasenseeers 32 People v. Waidla (2000) 22 Cal.4th 690 00... ecccccccsccsseeeseesseeecaeeceeeessesesnseteveateseeseaeetees 33 Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785 oie ccccccesceceseceseeeseseeeeeseensseseeeeeseeeeaseeeens 23, 32 Reich v. N.Y.C. Transit Auth. (2d Cir. 1995) 45 F.3d 646 oo. cccccccccessssscsecsssecessssescesssessecereeeesseenase 15 Rutti v. Lojack Corp. (9th Cir. 2010) 596 F.3d 1046 oo.ee eccscecceseccteetessneesecseseesesseeseeans 16, 34 Sandifer v. U.S. Steel Corp. (2014) 134 S.Ct. 870...eecceeceeesseceesseesesesecsesseeesessessesssesesstenes 32, 33 See ’s Candy Shops, Inc. v. Superior Court (2013) 210 Cal-App.4th 889 ooocccsecsessessseseeesseessseessesseeesnees passim Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal4th 557 ooocccccesseccesseessssessesereesseseesssseseensatees 27, 28 Tony & Susan Alamo Found. v. Sec’y ofLabor (1985) 471 U.S. 290 ooceececcneeesseecseeessecseesesnseesseeseaeessesssssesesasenees 24 Wisconsin Dept. ofRevenue v. Wrigley Co. (1992) 505 U.S. 214 (Wrigley) ..o.ccccccccccccssscsssessessseeesseeeeseeessseeesess passim Wolfv. Prosser (1887) 73 Cal. 219eececcsesesecseecssceeseccsesseeeeseeeesseesesseeseessesenseseeeenss 18 Yamaha Corp. ofAm. v. State Bd. ofEqualization (1998) 19 Cal.4th1eeesseesessecsesssseeesesseesseseeeseesssesseseseesseasees 27 STATUTES AND REGULATIONS Civ. Code § 3533 ee eeccccssscssssecessseecessseesecssscecesaceeecceseuesessseseseceessresseesseeeeeeseneses 25, 32 § 3542 ooo eecececcsssssssececeeetseeseeecsseeeeeeeeeceesserscssseecseesseeeeetectesesesseseceraases 32 Evid. Code § 702 .oeciecccescccsseceeeesseeeenssaveaeesevesseessc caseusecsnssaceseeaesseebeeaeaeestaecesacensonses 33. Lab. Code § 204eeccccscccsseccecssaceeessecsecsenseecssseeseesceaeesseseeseseeseeuaeseesaeeseeseasessesees 22 § SOee cccccecsesseesscssccecesssesseeeuecesseseseeeessesesassneeeceessasseceseeeseeestssersneegs 22 15 U.S.C. SBD ecceeecsecsssecescsseeeecescssesesseceeeouseeecssusecsseseesecessnsaseeseseaeesecseeenstens 17 29 U.S.C. | § 2OT(D)(2) ...cceccccccssccssscccssscsecssecssecesseececsaesesssescseseeeseaeesssasssenaesseaeeseeeaes 21 § QL1(C) on. eeceeccscsccecsssecceseeseesensecssseenseeeseescesssensueceesseaseeeeseaeeeeesseceaeens 26 7 29 C.F.R. § 778.223 ceccccccssscsssevsccesssssesssscessiveesuessussessssssssssessesssiesssssuessrsssesessseeesssed 21 § 785.47 ooccccscscssssssssssscsssssecsssccussscceseeeesucessessssnessessssstussessseees 16, 33, 34, 35 OTHER AUTHORITIES DLSE Manual(2002) § 46.64 vooccccccssessssssssecsssssssscesscessusessuscessesessssssssssesesssusessarsuessssuesssssesesssed 26 SATQAATQL ccsscecccsssssesssscssssesssuccesecesessssssessessesssesesessassetsssessssnseessses 26 § AB19-48. LOL. ces cccccsecsscsssssssessseecesecsessssssesssssssssesssssseesssuesssssseeseseees 26 DLSEOp. Letter 2010.04.07 v.ecccccsccescsseccsececcessssssssessesssesesssssecsssssessssseeeesses 26 DLSE Op. Letter 1988.05.16 ....ccccccscscsesesseseccssssssssssesessesessssstecersussesssseesesses 26 Veech & Moon, De Minimis Non Curat Lex (1947) 45 Mich.L.Rev. 537 o...eecsesscessssesseeseeessneecsesseessesseessassseesseesseasensesseseateass 16 RESPONDENT’S ANSWER BRIEF ON THE MERITS I. INTRODUCTION California’s de minimis rule applies to wage and hour claims under the California Labor Code for the following reasons. First, appellant Douglas Troester argues that this Court should not import a “federal”rule absent evidenceoflegislative intent. This argumentfails because the de minimis rule is not a federal rule. Rather, it has been a backbone of California law for nearly 150 years and applied in a wide variety of contexts. There is no reason that this Court should not apply it to California wage claims too, as many courts have done. Second, even if the de minimis rule was notalready California law, this Court has long held that “[f]ederal decisions have frequently guided ourinterpretation of state labor provisions the language of which parallels that of federal statutes.” (Building Material & Const. Teamsters’ Union, Local 216 v. Farrell (1986) 41 Cal.3d 651, 658.) Troester arguesthis rule does not apply because state law somehowconflicts with federal decisions applying the de minimis rule. He arguesthere is a conflict because California requires employeesto be paid for “all” hours worked, buthis argumentignoresthe fact that the Fair Labor Standards Act imposes the same requirement. Thus, this Court may properly look to federal law— especially when the California Division of Labor Standards Enforcement has endorsedit for nearly three decades and the Legislature hasratified it by not changing it even thoughit has existed for so long. 7 Finally, Troester’s position regarding “all” hours worked leads to absurdities. If an employee has to spend a few seconds leaving work after clocking out, then there is a labor law violation according to Troester. This meansthat there could be innumerable lawsuits over a few secondsoftime. The de minimis rule is one of commonsense and everydaypracticality, which prevents such absurdities. Il, BACKGROUND A. Troester Allegedly Worked Brief Moments “Off-The- Clock” On “Closing Shifts.” Troester worked in a Starbucksstore in California from February 2008 until January 2011. (2 ER 38, 58, 61.) Heinitially worked as a “barista,” an entry-level coffee-server, and then as a “shift supervisor.” (2 ER 38, 61-62.) Citing only a summary ofthe relevant facts, Troester argues that he performedtasks off-the-clock for “4 to 10 minutes on a daily basis.” (AOB 6.) But that description does not accurately reflect what the undisputed evidence showedandthedistrict court found. Rather, the amount “generally totaled less thanfour minutes” and only “rare[ly]’’ did it exceed that amount, in whichcaseit still “nearly always was less than 10 minutes.” (1 ER 5, emphasis added.)' Troester contendsthat, as a shift supervisor, he performed unpaid workat the end ofthe business day,i.e., “closing” shifts. (2 ER 40, 82, 89.) According to Troester, at the end of a closing shift, he was responsible for using the store computerto transmit sales data to Starbucks headquarters— the “close store procedure.” (2 ER 40, 87.) This procedure consisted only of selecting “close store” with the computer’s mouse or keyboard,entering a password, and then pressing the “Y” key. (2 ER 40, 87-88.) Troester contends that the computer system required that he clock out before initiatingthe closestore procedure. (2 ER 41, 102-105.) He_ ' Nor doesthe aggregate time—incurred overthe course of nearly a year and a half—total 12 hours as Troester incorrectly estimates. (AOB 6.) Nearly 7 hours of this estimate is simply the result of Troester’s attorney using incorrect figures or making typographicalerrors in his calculations. (5 ER 817-18, J 3-10.) Another 2 hours ofthis estimate comes from Troester’s attorney mistakenly considering the secondsin the alarm records but not in the punch records. (5 ER 818, J 11.) The timeatissue, therefore, totals just over 4 hours. (/bid.) 10 claims that the close store procedure typically lasted ““one minute to two minutes” before he activated the alarm. (2 ER 41, 113.) Immediately afterwards, Troester set the store alarm by typing a numeric code on the alarm panel near the computer. (2 ER 40, 84.) The alarm system required that employees leave the store within 60 secondsofsetting the alarm. (2 ER 42, 85.) So, after activating the alarm, Troester immediately exited the store and lockedthe front door. (2 ER 42, 90, 93-94.) He estimates thatit took 30 secondsto leave the store andaslittle as 15 secondsto lock the door. (2 ER 42, 92-94.) Troester claims that he then walkedhis co- workers to their cars, which took 35-45 seconds. (2 ER 42, 95.) This time—generally totaling less than four minutes—is the amountof off-the- clock time that Troester claims regularly occurred. (1 ER 5.) He wants to be paid for it. (2 ER 42, 99.) Troester further claims that, on rare occasions, he performed additional tasks after clocking out and exiting the store. First, every “couple of months,” he brought the store’s patio furniture inside the store after he and the other employees forgot to do so whilestill on-the-clock. (ER 43, 99.) Second, every “couple of months,” he opened the door so that another employee could retrieve a coat that he or she had left behind. (2 ER 43, 90-91, 101.) Third, two or three times a month, he stayed outside the store with a co-worker who waswaiting for a ride. (/bid.) Even when performingthese rare additionaltasks, the district court concluded that the total amountoftimestill “nearly always was less than 10 minutes.” (1 ER 7.) B. Troester Sues. Troester sued on behalf of a putative class of Starbucks non- managerial employeesin California who performed a “store closing procedure.” (4 ER 743, § 12.) He claims that Starbucks violated the California Labor Code byfailing to pay minimum andovertime wagesfor 11 the alleged off-the-clock work. (4 ER 745, §§ 20-43.) He also claimsthat, as a result of failing to pay for this time, Starbucks provided inaccurate wage statements (4 ER 748-49, { 44-51), neglected to pay all wages due upon termination (4 ER 750-51, 44] 52-62), and violated California’s Unfair Competition Law (4 ER 751-52, 49 63-69). He also seeks injunctiverelief. (4 ER 752.) C. The District Court Grants Summary Judgment On All Of Troester’s Claims. Starbucks sought summary judgmentonall of Troester’s claims, arguing, inter alia, that any unpaid time was de minimis and thus not recoverable. (2 ER 23-26.) Asthe district court aptly put it, Troester claims that Starbucks “failfed] to pay him for the brieftime he spent closing upthestore after he clocked out,” such as “the time he spent walking out ofthe store after activating the security alarm,[] the time he spent turning the lock on the store’s front door, and [] the time he spent occasionally reopening the door so that a co-worker could retrieve a coat.” (1 ER 1, emphasis added.) Applying a de minimis test set forth in Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. U.S. (9th Cir. 1984) 738 F.2d 1057, 1063, for wage claims brought under the Fair Labor Standards Act (FLSA), the district court concluded that the test equally * Starbucks also argued that the “closing”tasks that Troester performed only rare/y—namely, occasionally allowing a co-workerto reenter the store to retrieve a coat, spending time with co-workers outside the store who were waiting for rides, and retrieving forgotten patio furniture—were not compensable “work” because Troester chose to perform them and/or Starbucks had no knowledge of them. (2 ER 26-30, 42-45, 90-91, 94-101.) For example, Troester admittedly waited with co- workers for rides not because his managers asked him to do it or knew aboutit, but because he felt he should. (2 ER 44, 96-98, 120, 127.) However, these andother alternative arguments raised are not at issue here. Nordid the district court reach them. (1 ER 7.) 12 applies to claims under the California Labor Code, and that these brief periods of time need not be paid. (1 ER 6 [“Through the de minimis defense, the law recognizesthat ‘[s]plit-second absurdities are not justified 399by the actualities of working conditions.’”], quoting Anderson, supra, 328 USS. at p. 692.) In granting summary judgmentfor Starbucks,the district court applied the three factors courts consider in determining whether work time is de minimis: (1) the practical administrative difficulty of recording the time; (2) the aggregate amountoftime; and (3) the regularity of the additional time. (1 ER 4,citing Lindow, supra, 738 F.2d at p. 1063.) The district court first examined the second Lindow factor—the “aggregate amount of compensable time”—andcited with approval authority holding that “daily periods of approximately 10 minutes are de minimis.” (1 ER 4, citations omitted.) The court analyzed “the undisputed facts” to determine how longit took Troester to perform each allegedly compensable task after clocking out: run the “close store” function and activate the alarm (about 1 minute)’; exit the store (30 seconds); lock the door (15 seconds to 2 minutes); and walk co-workers to their cars (45 seconds). (1 ER 5.) The court also found that other tasks—waiting with co-workersfor rides, letting them backinto the store, or bringing in patio furniture that Troester forgot to retrieve before clocking out— occurred on “rare” occasions and in any event took only “a few minutes.” (/bid.) The. . court concluded that, “[e]ven assuming that all ofthis time otherwise would be compensable ‘work,’ it generally totaled less than four minutes, and nearly always wasless than 10 minutes.” (/bid. [The duration of > The undisputed evidence showedthat, on average, Troester activated the alarm approximately one minute after clocking out; that he did so within two minutes on 90% ofhis shifts, and within 5 minutes on every shift. (1 ER 5.) 13 Troester’s post-closing activities is even briefer than the time periods found de minimis in [other cases].”’], emphasis added.) In considering the first factor, the court held that the “‘administrative difficulty of recording the additional time’ also favors applying the de minimis defense.” (1 ER 5.) Thecourt held that Starbucks timekeeping system “could notfeasibly capture the timeat issue in this case.” (1 ER 6.) This wasin part because the software Starbucksused allegedly required Troester to clock out before initiating the store closing procedure—atask “which lasted one minute on average.” ([bid.) Moreover, the court found that it would be “impracticable” for Starbucks to capture the tasks Troester performed after completing the store closing procedure. (/bid.) For example, employees “could notset the alarm prior to clocking out because the alarm becameactivated within one minute and would betriggeredifthe employees did not immediately exit the store.” (/bid.) Moreover, employees must “necessarily” clock out before they walk out of the store, lock the front door, and walk co-workers to their cars—tasks that took “minimaltime.” (/bid.) Asto the third factor, the court agreed with other authority that the de minimis rule can be applied “even whena plaintiff alleges uncompensated time every day” wherethe first two Lindow factors are satisfied. (1 ER 6.) Accordingly, the court dismissed the claim for unpaid wages,as well as the derivative claimsforfailure to provide accurate wagestatements, failure to timely pay all final wages, and unfair competition. (1 ER 7.) The district court concluded: The brief moments that Plaintiff spent in and aroundthe store after clocking out are an inevitable and incidental part of closing up anystore at the end of business hours. There will always be some unaccounted-for seconds spent on setting an alarm, physically leaving the store, locking the door, and 14 walking out at the end of a closing shift. But not every secondcan be or need be recorded and compensated. (1 ER 6.) D. The Ninth Circuit Requests That This Court Decide Whether The De Minimis Rule Applies To California Wage AndHourClaims. Troester appealed the summary judgment decision and the Ninth Circuit held oral argument. Afterward, the Ninth Circuit asked this Court to decide whether the de minimis rule, as stated in Anderson and Lindow, applies to claims for unpaid wages underthe California Labor Code. This Court granted the Ninth Circuit’s request. I. ARGUMENT The de minimis rule wasfirst adopted in FLSA cases in Anderson: When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities ofworking conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure ofhis time and effort that compensable working time is involved. (Anderson, supra, 328 U.S.at p. 692.) Relying on Anderson, the courts developed a three factortest to “determin[e] whether otherwise compensable time is de minimis”: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” (Lindow, supra, 738 F.2d at p. 1063; see also, e.g., — Carlsen v. U.S. (Fed. Cir. 2008) 521 F.3d 1371, 1380-1381 [following Lindow}; De Asencio v. Tyson Foods, Inc. (3d Cir. 2007) 500 F.3d 361, 374-375 [same]; Reich v. N.Y.C. Transit Auth. (2d Cir. 1995) 45 F.3d 646, 652 [same].) AsLindow observed, the “de minimis rule concerns‘just plain everyday practicality.’” (Lindow, supra, 738 F.3d at p. 1063, quoting 15 Veech & Moon, De Minimis Non Curat Lex (1947) 45 Mich.L.Rev. 537, 551.) While “[ml]ost courts have found daily periods of approximately 10 minutes de minimis,” “[t]here is no precise amountoftime that may be denied compensation as de minimis.” (Id. at p. 1062.) “Norigid rule can be applied with mathematical certainty. Rather, common sense must be applied to the facts of each case.” (/bid.) This commonsenseand practical approach, “justified by industrial realities,” is also embodied in the Code of Federal Regulations. (29 C.F.R. § 785.47 [“[I]nsubstantial or insignificant periods of time beyond the scheduled working hours, which cannotas a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.”].) The Lindowtest “reflects a balance between requiring an employer to pay foractivities it requires of its employees and the need to avoid ‘split- second absurdities’ that ‘are not justified by the actuality of the working conditions.’” (Rutti v. Lojack Corp. (9th Cir. 2010) 596 F.3d 1046, 1057, quoting Lindow, supra, 738 F.2d at p. 1062.) As Judge Posnerofthe Seventh Circuit has stated, the rule is often applied when “the harm is small but measuringit for purposes of calculating a remedy would bedifficult, time-consuming,and uncertain, hence not worthwhile given that smallness.” (Mitchell v. JCG Industries, Inc. (7th Cir. 2014) 745 F.3d 837, 841.) _ These commonsenseprinciples, as explained below, apply equally _ to wage claims under the California Labor Code. A. The De Minimis Rule Has Long Been A Central Component OfCalifornia Law,So It Is Not A Federal Rule. Troester argues that this Court should reject application of a “federal” de minimis rule, assuming the de minimis rule is afederal rule. It is not. It “is a maxim of ancientorigins, ‘old’ even in the infancy of the 16 nation,” and it even informs whetherrights under both the United States and California Constitutions have been violated. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 514 [despite differences between therights to freedom of speech under the First Amendmentofthe United States Constitution and underarticle I of the California Constitution, the de minimis rule appliesto article I “as well’’].) The de minimisruleis “part of the established backgroundoflegal principles against whichall enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” (Wisconsin Dept. ofRevenue v. Wrigley Co. (1992) 505 U.S. 214, 231 (Wrigley).) In Wrigley, the Supreme Court interpreted 15 U.S.C. § 381, which “confers immunity from state income taxes on any company whose‘only business activities’ in that State consist of ‘solicitation of orders’ for interstate sales.” (/d. at p. 223.) Relying on the word “only,” Wisconsin argued that the “plain language” of Section 381 bars “recognition of a de minimis exception” and thus a companylosesits tax immunity if it conducts any in- state activities that go beyond “solicitation.” (/d. at p. 231.) The Court disagreed, finding that such an interpretation “ignores” the fundamental and “established” nature of the de minimis rule and would lead to absurd results. (/bid. [“Wisconsin’s reading of the statute renders a company liable for hundreds of thousandsofdollars in taxes if one ofits salesmen sells a 10-cent item in state.”’].) . The rule is grounded in the “venerable maxim de minimis non curat | lex (‘the law caresnotfortrifles’).” (Wrigley, supra, 505 U.S.at p. 231.) This maxim has been codified in California law since at least the adoption 17 of the Civil Code in 1872. (Civ. Code, § 3533 [“The law disregards trifles.”].)* California courts have long applied this rule in a broad range of cases. (See, e.g., People v. Armstrong (2016) 1 Cal.5th 432, 452 [where juror “looked at a book and a cell phone ‘one or two times’ for ‘a few minutes[,]’ [s}uch de minimis references . . . do not support a determination that [she] was refusing to deliberate”]; Claremont Police Officers Ass’n v. City ofClaremont(2006) 39 Cal.4th 623, 638-639 [city not required to confer with union before requiring officers to documentrace and ethnicity of persons subject to vehicle stops because it took officers only several minutespershift to fill out the forms, and thus “the impact on the officers’ working conditions was de minimis”]; Connell v. Higgins (1915) 170 Cal. 541, 556 [where contractor has substantially performed his contract, recovery ofthe price is not defeated by “trivial defects or imperfections in the work performed”]; Wolfv. Prosser (1887) 73 Cal. 219, 219-220 [where “property to be sold and the proceeds divided in a specified way”and the amount in dispute “amounted to only ten dollars[,] [w]e think this is a propercase for the application of the maxim, De minimis [non curatlex]”’]; see also Lueras v. BAC Home LoansServicing, LP (2013) 221 Cal.App.4th 49, 79 [“Time andeffort spent assembling materials for an application to modify a loan is the sort of nominal damage subject to the maxim de minimis non curat lex ... .”]; Bermudez v. Fulton Auto Depot, LLC (2009) __ | 179 Cal.App.4th 1318, 1325 [fact that auto dealer overcharged buyer by two dollars for vehicle license fees wasa “‘trifle[]”]; Jn re Marriage of Crook (1992) 2 Cal.App.4th 1606, 1608-1609 & fn. 2 [in determining spousal share of a community property pension, “[w]e do not modify the * Troester argues that the Legislature specifically adopts a defense whenit intends for a defense to apply. (AOB 16-17.) Section 3533 shows that it did so. 18 $2.38 per month discrepancy since it is de minimis”]; Harris v. Time, Inc. (1987) 191 Cal.App.3d 449, 458-460 [unfair advertising lawsuit “de minimis’ in the extreme” and “absurd waste of the resourcesof this court” where “plaintiffs’ real complaintis that they were tricked into opening a piece ofjunk mail, not that they were misled into buying anything”], original emphasis; Overholser v. Glynn (1968) 267 Cal.App.2d 800, 810 [one additional month ofprejudgmentinterest, while improper, was “de minimis and not sufficient ground for modifying the judgment”]; Nye & Nisson v. Weed Lumber Co. (1928) 92 Cal.App. 598, 607-608 [“‘To permit the cancellation of a contract for 750 cases of processed eggs merely because a minimum numberthereofarrived at their destination unfit for use would violate the spirit of the legal maximum de minimis non curat lex.’’].) Thus, the de minimis rule is a fundamental part of California law— not an import from federal law. Troester completely ignoresthis. B. The De Minimis Rule Applies To California Wage Claims. 1. Courts Have Regularly Applied The De Minimis Rule To California Wage Claims. Given California’s longstanding adoption of the de minimisrule,it is not surprising that manycourts have applied the de minimis rule to wage and hour claimsunderCalifornia law. (Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 527-528 [applying Lindow test to California wage claim]; accord Corbin v. Time Warner Ent’t-Advance/Newhouse P 'ship (9th Cir. 2016) 821 F.3d1069, 1081-1082& fin. 11; Gillings v. Time Warner Cable LLC (9th Cir. 2014) 583 F.App’x 712, 714; Cervantez v. Celestica Corp., (C.D.Cal. 2009) 618 F.Supp.2d 1208, 1216-1217; Alvarado v. Costco Wholesale Corp. (N.D.Cal., June 18, 2008, No. C 06-04015 JSW) 2008 WL 2477393, at *3-4; Cornn v. UPS, Inc. (N.D.Cal., Aug. 26, 2005, No. C03-2001 TEH) 2005 WL 2072091, at *4.) This Court should do the same. 19 2. California Courts Regularly Look To Federal Guidance Where There Is No Conflict. “Federal decisions have frequently guided our interpretation of state labor provisions the language of which parallels that of federal statutes.” (Building Material, supra, 41 Cal.3d at p. 658 [“consider[ing] federal . . precedents” to construe statutory obligation to bargain collectively under California law wherethat obligation was the same as under the National LaborRelations Act]; See ’s Candy Shops, Inc. v. Superior Court (2013) 210 Cal.App.4th 889, 903 [“In the absence of controlling or conflicting California law, California courts generally look to federal regulations under the FLSA for guidance.”].) This Court has looked to federal law in determining what“hours worked” meansunless California law conflicts with it. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584-585 [relying on federal regulations and case law to interpret meaning of the phrase “suffered or permitted to work,” as that phrase appears in both the FLSA and California definitions of “hours worked”’}; id. at p. 593 [declining to follow federal guidance on the compensability of travel time because “federal and state law regarding travel time are dissimilar”, emphasis added.) Here, despite Troester’s assertions to the contrary, there is no conflict between state and federal law, so this Court should look to federal law—Anderson and Lindow—for guidance on adopting and applying a de minimisrule. ~ Troester argues that the de minimis rule conflicts with the plain. . language of California law, which requires that “any”or “all” hours worked be compensated. (AOB 1-3, 13-16.) But his argument assumesthat federal law differs in this regard. It does not. (Bamonte v. City ofMesa (9th Cir. 2010) 598 F.3d 1217, 1220 [‘‘It is axiomatic, under the FLSA,that employers must pay employees for a// hours worked.’”’], quoting Alvarezv. IBP, Inc. (9th Cir. 2003) 339 F.3d 894, 902, aff'd on other grounds sub 20 nom. IBP v. Alvarez (2005) 546 U.S. 21, emphasis added; 29 C.F.R. § 778.223 [“an employee must be compensated for a// hours worked”’], emphasis added; see also 29 U.S.C. § 207(b)(2) [employees subject to collective bargaining agreements muststill “receive compensation for all hoursguaranteed or worked”], emphasis added.) The cases applying the de minimis rule similarly acknowledgethat the FLSA requires paymentfor al// hours worked. (Anderson, supra, 328 USS.at pp. 690-691 [compensable time “includes a// time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace . . . .”], emphasis added;id. at pp. 691-694 [finding minutes spent “walking” from time clocks to work areas and performing preliminary tasks to be compensable, but remanding case for determination of how muchofthe time maybe “disregarded” under de minimis rule]; Lindow, supra, 738 F.2d at p. 1062 [“As a generalrule, employees cannot recover for otherwise compensable timeifit is de minimis.””|, emphasis added.) Because California law is the sameas federal law in this respect, “federal precedents . . . furnish reliable authority in construing” whatit meansto pay for “all” of the “hours” worked by California employees. (Building Material, supra, 41 Cal.3d at p. 658.) See’s is instructive. The defendant argued that a federal standard should guide whether a California employer may “round” employee work times “for purposes of computing and paying wages....” (See’s, supra, 210 Cal.App.4th at p. 900.) Because “there [wa]s no California statute or case law specifically authorizing or prohibiting this practice,” the court found that the “federal[] standard is the appropriate standard.” (/d. atp. 901.) Moreover,like here, the California Division of Labor Standards Enforcement (DLSE) endorsed the standard (discussed in § IJI.B.3, below), 21 the Legislature never acted by amendmentor otherwiseto indicate that the DLSE’s position wasincorrect, and there was “no conflicting California law” such that resorting to federal guidance would be improper. (See’s, supra, 210 Cal.App.4th at pp. 902-903, 905.) The court reasonedthat time- rounding, like the de minimis rule, is grounded in practicality and efficiency, designed to compensate employee hoursasprecisely as possible without imposing an undue burden on employers, even if that means not every employeewill ultimately be paid for every single minute that she works. (/d. at pp. 903, 908 & fn. 7 [it is “questionable” whether employees who “had a net loss of a minimal amount . .. would be entitled to a recovery for these wages... .”], emphasis added.) See ’s also rejected an argumentlike Troester makes, namely, that rounding employee work times somehow conflicted with the statutory obligation to pay ‘““/a/ll wages’” or pay overtime for “/a]/ny work in excess of eight hours in one workday ....” (See’s, supra, 210 Cal.App.4th at pp. 904-905, citing Lab. Code, §§ 204, 510, original emphasis); compare AOB 1-4, 13-16, 18-20 [arguing that the de minimis rule conflicts with the plain language of Sections 204 and 510, inter alia, which require that “any” and “all” hours be compensated].) However, Sections 204 and 510 “h[ave] nothing to do with” how an employer may “measure[]”or “calculat[e]” worktime. (See’s, supra, 210 Cal.App.4th at p. 905.) Rather, for example, Section 510 simply “sets the multiplier for the rate at which ‘Any’ overtime work must be paid.” (bid. [““Fundamentally, the question whethera// wages have been paid is different from the issue of how an employer calculates the number of hours worked and thus what wages are owed.”], original emphasis.) Troester’s cited authorities are distinguishable. As stated above, Morillion declined to import federal standards on the compensability of compulsorytravel time because they conflicted with the plain language of 22 the California Wage Orders. (Morillion, supra, 22 Cal.4th at pp. 589-590, 594 [“[W]e conclude that the relevant portions of the FLSA and Portal-to- Portal Act differ substantially from Wage Order No. 14-80 andrelated state authority. Therefore, Royal’s reliance on federal authority, and the Court of Appeal’s deference to it, are not persuasive.”], emphasis added.) Troester’s reliance on Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, and Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, is misplaced for the same reason. In Ramirez, this Court found that “where the languageor intent of state and federal labor laws substantially differ, reliance on federal regulations or interpretations to construe state regulations is misplaced.” (Ramirez, supra, 20 Cal.4th at p. 797, emphasis added;id. at pp. 793, 797 {noting “fundamental conflict” between California definition of outside salesperson, which focuses on “how much work time is spent selling,” and federal definition, which does not].) And in Armenta, defendant’s reliance on the federal minimum wagestandard was improperbecauseit “contravenes” the California Labor Code. (Armenta, supra, 135 Cal.App.4th at p. 323.) Here, no such conflict or difference—muchless a “substantial” difference—exists because both federal law and state law require compensation for “all” “hours” worked. Thus, this Court may properly look to federal guidance in determining what those two words reasonably mean. (Building Material, supra, 41 Cal.3d at p. 658; see also Ramirez, supra, 20 Cal.4th at p. 795 [California law only “sometimes” departs from federal law or “provide[s] greater protection than is provided underthe [FLSA]”]; Gillings, supra, 583 F.App’x at p. 714 [rejecting argument that 23 Morillion,or fact that California generally provides “greater protection to employees” than the FLSA,precludesapplication of the de minimis rule].)° Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, is distinguishable as well. In Mendiola, the Industrial Welfare Commission (IWC) expressly incorporated federal standards in some wage orders but not in Wage Order4, thus “seriously undermin[ing] the notion that the IWC intended to incorporate” them in Wage Order 4. (/d. at pp. 843, 847.) Here, the de minimis rule is not mentioned in any of the wage orders—not surprisingly given its fundamental nature—so Mendiolais not applicable. Citing Martinez v. Combs (2010) 49 Cal.4th 35, Troester next argues that the timing of the [WC’s enactmentof its definition of “hours worked” showsthat the Legislature intended to reject the de minimis rule. (AOB 21, 24-25 [noting that the [WC enacted the definition one yearafter Anderson].) But that is not why the IWCacted. Rather, the IWC enacted its definition of “hours worked”in response to the federal Portal-to-Portal Act, which amended the FLSA to excludecertain travel time and other activities from “compensa[ble]” time. (Martinez, supra, 49 Cal.4th at pp. 59-60.) Again, the de minimis rule is not concerned with whether the time is compensable. Rather, the de minimis rule is concerned with whether short periods of compensable time must be paid. Troester also cites Pacific Intermountain Express v. Nat’! Union Fire Ins. Co. (1984) 151 Cal.App.3d 777, to support his “timing” argument, * In arguing that California wage and hour laws are sometimes more favorable to employees than federal law, Troester also notes that California law has a “strong policy” of construing wage and hourlaws“liberally” to protect employees. (AOB 25-26.) But so does the FLSA. (Tony & Susan Alamo Found. v. Sec’y ofLabor (1985) 471 U.S. 290, 296 [FLSA “construed . . . ‘liberally to apply to the furthest reaches consistent with congressional direction’... .”]; A.H. Phillips, Inc. v. Walling (1945) 324 U.S. 490, 493 [exemptions from wageand hourprotections “must . . . be narrowly construed”’].) 24 but that case proves the opposite. As Troester correctly notes (AOB 24), the IWC “is presumed ‘to have knowledgeof existing judicial decisions and to have enactedstatutes in light thereof.’” (Pacific Intermountain, supra, 151 Cal.App.3d at p. 783, citation omitted.) If the IWC did not intend its “analogous” languageto be interpreted in the same wayas Andersoninterpreted the FLSAto include a de minimis rule, “it could have expressly declared such intent.” (/bid.) The IWCdid not do so. In any case, “timing . . . is, at best, ambiguous evidenceoflegislative intent; it certainly does not constitute clear evidence of intent... .” (/d. at p. 785, original emphasis.) Martinez is distinguishable for other reasons. In Martinez, the defendants argued that the wage orders “incorporated the federal ‘economic reality’ definition of employment ....” (Supra, 49 Cal.4th at p. 52.) Rejecting this argument, this Court reasoned that the wage orderdefinition of “employ”was“{iJn no sense . . . based on federal law” because the IWC enacted it long before the economicreality test even existed, and that test had “uniquely federal antecedents.” (/d. at pp. 66-67 [economicreality test groundedin “federal tax and social security laws”].) Here, as stated above, the de minimis rule is a long-standing andbasic principle that “all enactments (absent contrary indication) are deemedto accept.” (Wrigley, supra, 505 U.S. at pp. 231.) Noris it “uniquely federal,” as demonstrated by the Legislature’s decision to codify it nearly150 years ago. (Civ. Code, § 3533.) | ° Troester’s remaining arguments as to why California law somehow conflicts with federal law, or that the [WC intended to reject the de minimis rule, are equally unavailing. Troester argues that the Legislature’s decision to criminalize the failure to pay wages showsanintent to reject the de minimis rule. (AOB 3, 18-19, 26.) But that is not why the Legislature acted. Rather, the Legislature criminalized the failure in a “further”effort “{t]o ensure the IWC’s wage orders would be obeyed... .” (Martinez, 25 Thus, none of Troester’s citations demonstrates that this Court should not look to federal law here. 3. The DLSE Has Long Endorsed The De Minimis Rule, Which The Legislature Has Ratified. While California courts do not defer to the DLSE,its interpretations of California labor laws are persuasive. (Augustus v. ABMSecurity Serv., Inc. (Dec. 22, 2016, S224853)= Cal. Sth —-—« [2016 WL 7407328,at *2] [in construing “Labor Code and wageorders,” “we .. . take account of interpretations articulated by the [DLSE], the state agency that enforces wage orders, for guidance.”].) As this Court recently explained: Asthe state agency empoweredto enforce wage orders and state labor statutes, the DLSEis in a position to accumulate both knowledge and experience relevant to the administration of wage orders. While its opinion letters are not controlling, they reflect the type of experience and considered judgment that may properly inform our judgment. (/d. at *6-7, citations omitted; see also Brinker v. Superior Court (2012) 53 Cal.4th 1004, 1029, fn. 11 [“The DLSE’s opinionletters, ‘while not controlling . . . do constitute a body of experience and informed judgment to which courts... may properly resort for guidance.’”’], citation omitted.) Thus, it is significant that the DLSE has applied the de minimis rule for nearly three decades, consistent with its practice of consulting persuasive federal principles where they are “not inconsistent with state law.” (DLSE Op.Letter 2010.04.07 at p. 3; see also DLSE Op.Letter 1988.05.16 at pp. 1-2 [adopting Lindowtest and recognizing that de minimis “determinations will have to be made on a case-by-case basis”; DLSE Manual (2002) §§ 46.6.4, 47.2.1-47.2.1.1, 48.1.9-48.1.9.1.) supra, 49 Cal.4th at pp. 53, 56.) Noris it of any consequence that California requires employers to “keep records of hours worked” (AOB4, fn. 3, 20), because the FLSA also does. (29 U.S.C. § 211(c) [employers must maintain records “of the wages, hours, and other conditions and practices of employment’’].) 26 M e M E N G E e e e B t L o e The Legislature’s decision not to reject this interpretation, despite the DLSE’s longstandingpractice, is strong evidencethat it agrees with the DLSE. (Yamaha Corp. ofAm. v. State Bd. ofEqualization (1998) 19 Cal.4th 1, 13 [“evidence that the agency ‘has consistently maintained the interpretation in question, especially if [it] is long-standing,’” is a factor “suggesting the agency’sinterpretation is likely to be correct”}; Moore v. Cal. State Bd. ofAccountancy (1992) 2 Cal.4th 999, 1017-1018 [“[A] presumption that the Legislature is aware of an administrative construction of a statute should be applied if the agency’s interpretation of the statutory provisionsis of such longstanding duration that the Legislature may be presumedto knowofit.”].)’ Troester baldly asserts that the DLSE’s interpretation conflicts with state law simply because the DLSE Manualcites federal guidance. (AOB 9.) But this assumesthat federal law is inconsistent with state law and, as explained above,it is not. And while Troester correctly notes that the DLSE manualitselfis not entitled to the “deference” that would be given to a statute or properly enacted regulation (AOB 33-34), the manualas well as the DLSE’sadviceletters still have persuasive value. (Morillion, supra, 22 Cal.4th at pp. 581, 584 [finding DLSEopinionletters “persuasive” regarding the meaning of “hours worked”]; See’s, supra, 210 Cal.App.4th at pp. 902-903 [while “[s]tatements in the DLSE Manualare not binding . . because the rules were not adopted under the Administrative Procedure Act [APA],” those statementsstill “may be consideredfor their persuasive value.”].) Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, cited by Troester, does not require a different result. Tidewater only ruled ’ Troester argues that a DLSEposition that “flatly contradicts” one of its prior positions should be givenlittle weight (AOB 10), but he offers no evidencethis has happened. 27 that an enforcementpolicy in the DLSE Manual comprised a “regulation” and thus wasvoid forfailure to comply with the APA. (/d. at p. 576.) This Court did not hold that DLSE guidanceis entitled to no consideration. (Id. at p. 571 [although not binding, DLSE “adviceletters” and “interpretations that arise in the course of case-specific adjudication are not regulations[] . . . [and] may be persuasive as precedents in similar subsequentcases.”], emphasis added.) Nor does Tidewater preclude this Court from agreeing with the DLSE’s endorsement ofthe de minimis rule. (Id. at pp. 576-577 (“while we do not defer to the DLSE’s interpretation of the IWC wage orders, we do not necessarily reject its decision to apply the wage orders to [the employeesat issue]’’].) Forall these reasons, the DLSE’s position, and the Legislature’s ratification ofit, further support the conclusion that the de minimis rule applies to wage claims underthe California Labor Code. 4. The De Minimis Rule Applies To Statutory Wage Claims, Not Just Equitable Claims. Citing Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, Troester argues that an equitable maxim such as the de minimis rule cannot be used to “nullify” or “avoid a statutory mandate.” (AOB 31.) Ghory is distinguishable. In Ghory, the employerpaid only a flat monthly salary to the plaintiff and failed to pay him for any overtime at all—even though he worked 59 hours per week. (Ghory, supra, 209 Cal.App.3d at pp. 1489- 1492.) The court rejected the employer’s equitable argument thatpaying overtime would result in “unjust enrichment” because the employee “agreed” to work this many hours. (/d. at p. 1492 [“Principles of equity cannot be used to avoid [the Section 1194] statutory mandate,” which provides that employeesare entitled to “the legal overtime compensation applicable to such employee. . . notwithstanding any agreement to workfor a lesser wage.’’|, original emphasis.) 28 In contrast, the de minimis rule is not about avoiding paymentfor hours worked altogether, or agreeing to a compensation arrangementthat a statute expressly prohibits. Rather, it is about how precisely “all” “hours” can practicably be recorded and paid without there being “[s]plit-second absurdities.” (Anderson, supra, 328 U.S.at p. 692.) Norcan applying the Lindow test to wage claims be fairly compared with this Court’s reluctance to apply the de minimis rule to certain tax sale, contract, or workers’ compensation claims. (AOB 31-32.) In Knokev. Swan (1935) 2 Cal.2d 630, this Court observedthat only its prior decisions precluded application of the de minimis rule to tax sales, and noted “[w]ere this point newly presented, we should hesitate to declare void title founded on proceedings where the error was so small.” (/d. at p. 631 [sale invalid because property sold for “two cents less” than tax amount due].) Further, Knoke does not indicate whether it would have been administratively difficult to pay or determine the additional “two cents” needed to effect a valid sale. (/bid.) Gallamore v. Workers’ Comp. Appeals Ba. (1979) 23 Cal.3d 815, and Kenyon v. Western Union Tel. Co. (1893) 100 Cal. 454, are distinguishable as well. In Gallamore, wherethe statute already limited the penalty for a violation to “unreasonabl[e]” delays in paying workers’ compensation benefits, the board had no “discretion to ignore minor, de minimis delinquencies”not simply because “the statute does not recognize any such exception,” but also because such delinquencies “may be met by the board in determining reasonableness ofthe delay.” (Gallamore, supra, 23 Cal.3d at pp. 822-823, original emphasis.) And in Kenyon, the Court held only that because “nominal damages”are available in contract cases, “the maxim de minimis non curat lex” generally does not apply. (Kenyon, supra, 100 Cal. at p. 458.) 29 Finally, Troester’s argument that Gomez supports the proposition that the de minimis rule should only be applied to equitable claims, and not statutory claims (AOB 32), is misplaced. Gomez neither held nor even suggested any such thing. Rather, the court in Gomez had no occasion to addressthe rule in the context of the statutory claims becausetheplaintiffs alleged entitlement to pay for certain short periods of time only in the context of their claim for promissory estoppel. (Gomez, supra, 173 Cal.App.4th at p. 527.) In fact, Corbin relied on Gomezin finding that the de minimis rule does apply to statutory claims. (Corbin, supra, 821 F.3d at pp. 1075, fn. 3, 1079-1082 & fn. 11 [applying de minimis rule to wage claims under California Labor Code]; see also See ’s, supra, 210 Cal.App.4th at p. 901 [applying federal rounding standard to claims under California Labor Code].)* In short, here there is no reason to depart from the basic principle that “all enactments” should be consideredin light of the de minimis rule. (Wrigley, supra, 505 U.S.at p. 231.) . 5. The De Minimis Rule Is No Less Relevant Today. Troester argues that the de minimis rule is “obsolete” and no longer justified in the modern “era of electronic timekeeping,” where Starbucks canrecord time “to the minute.” (AOB 2, 30.) This also misses the mark. Advancesin technology go to merits of the defense(i.e., administrative difficulty factor), not whether the defense exists. ‘Again, the de minimis rule concerns“the practical administrative difficulty of recording small amounts of time for payroll purposes.” ® If anything, Gomez demonstrates the protective nature of the de minimis rule. (Gomez, supra, 173 Cal.App.4th at p. 527-528 [finding de minimis rule could not be used to avoid paymentnot only becausethe time at issue “exceed[ed] a de minimis amount,”but also because the “record contain[ed] no evidence regarding whetherit would bedifficult administratively to record the time plaintiffs spent” on the telephone].) 30 (Lindow, supra, 738 F.2d at pp. 1062-1063 [“just plain everyday practicality”]; see also Anderson, 328 U.S.at p. 692 [“a few seconds or minutes” that cannotbe practically recorded “in light of the realities of the industrial world”].) Theserealities did not disappear because computers exist. The compelling facts here illustrate this. The district court found in part that it was the nature of the activities—not the mechanics of Starbucks timekeeping system—that required Troester to spend minimal time performing work off-the-clock. (1 ER 6 [“The brief momentsthat Plaintiff spent in and aroundthestore after clocking out are an inevitable and incidental part of closing up anystore at the end of business hours.”].) For example, Troester could not clock out after he spent seconds “walking”several feet to the front door and “turning” the lock behind him as he exited. (1 ER 1, 6.) Nor wasit practical to clock out after setting the alarm because, once the alarm is set, he had to immediately exit and lock the store within 60 secondsor the alarm will sound. (/bid.; see also See’s, supra, 210 Cal.App.4th at p. 892 [time rounding practice permissible even though employer used modern “timekeeping software system”able to capture time “to the minute”].) Plus, even if it were feasible for Starbucks to capture the time spent performing the store closing tasks, the time at issue is miniscule, almost alwaystotaling one to two minutes. (2 ER 41, 113.) To find otherwise would lead to absurd results—attempting to track the one or two minutes Troester spent leaving the store. Moreover, Troester does not simply seek payment for the few minutes of time he spent leaving the store. He also seeks potentially thousands of dollars in wage statement penalties and waiting-time penalties for failing to pay him for these brief moments. (4 ER 748-751.) To credit such “[s]plit-second absurdities” (Anderson, supra, 328 U.S. at p. 692) cannot possibly be what the Legislature intended. (Wrigley, supra, 505 U.S.at p. 231 [“Wisconsin’s 31 reading of the statute renders a companyliable for hundreds of thousands of dollars in taxes if one of its salesmensells a 10-cent item in state.”); Ramirez, supra, 20 Cal.4th at p. 801 [‘no needto interpret the wage order so strictly” such that it “lead[s] to an absurd result”]; see also People v. Mendoza (2000) 23 Cal.4th 896, 908 [““We must also avoid a construction that would produce absurd consequences, which we presumethe Legislature did not intend.”]; Civ. Code, § 3533 [The law disregards trifles.”], § 3542 [“Interpretation must be reasonable.’’].) Finally, the U.S. Supreme Court in Sandifer v. U.S. Steel Corp. (2014) 134 S.Ct. 870, did not cast doubt on the Lindow test’s “continuing viability,” as Troester argues. (AOB 30-31.) Rather, Sandifer simply found that a different rule should be applied in a unique situation where the statute itself already concernedtrifles. (Sandifer, supra, 134 S.Ct. at pp. - 880-881.) Specifically, Sandifer interpreted the meaning of “clothes” under Section 203(0) of the FLSA, which permitsparties to a collective bargaining agreement to decide whether“the relatively insignificant periods of time” employees spend donning and doffing work clothes should be compensated. (/d. at pp. 876, 880.) In that case, the parties’ agreement provided that the time spent changing work clothes would not be compensated. (Sandifer, supra, 134 S.Ct. at 874 & fn. 3.) But, while the majority of this “insignificant” time was spent changing clothes such as work jackets and pants, a few items did not comprise “clothes” and thus were compensable—e.g., safety glasses and earplugs. (/d. at pp. 879-881.) Instead of “invoking” the de minimis rule to determine whether the compensable activities nonetheless need not be paid, the Court fashioned a specific test for Section 203(0): If the “vast majority” of the time is spent changing “clothes,” then none ofthe time need be compensated even though some small portion ofit is spent putting on non-clothesitems such as glasses or earplugs. (/d. at pp. 880-881.) 32 Conversely, if the vast majority is spent changing non-clothes items, then all of the time must be compensated. (/d. at p. 881.) The Court did not suggest that the de minimis rule should no longer be applied to statutes other than Section 203(0) and, in fact, madeclear that the Section 203(0) scenario differed from that to which the de minimis rule would apply. (Sandifer, supra, 134 S.Ct. at p. 880 [unlike the statute at issue in Anderson, in which the de minimis rule applied, “the statute at issue here ... is all about trifles”], original emphasis.)” 6. The De Minimis Rule Will Not “Injure” Employees. Troester speculates that employees throughout California risk losing “billions” of wagesperyearif, for example, daily periods of two minutes are de minimis. AOB 28-29. But speculation is not evidence. (People v. Waidla (2000) 22 Cal.4th 690, 736; see also Evid. Code, § 702; Sandifer, supra, 134 S.Ct. at p. 878 [“[P]etitioner’s fanciful hypotheticals give us little pause.”’].) There is no evidence about how manyCalifornia employees are not being paid for de minimis time. Further, Troester’s argument assumesthat two minutesoftime would be de minimis in every single case. This ignores the protections set forth in Lindow, whichstates that a// factors must be considered, and there can be “no rigid rule” on “the precise amountof time” that should be considered de minimis; rather, “common sense mustbe applied to the facts of each case.” (Lindow, supra, 738 F.2dat p. 1062, emphasis added; __ Gillings, supra, 583 F.App’x at p. 715 [fact that complained of periods are ” Nor did Sandifer suggest that that it is now “unclear what the federal de minimis test even is.” (AOB 30-31.) Sandifer merely acknowledged that the de minimis regulation prohibits employers from “arbitrarily” refusing to pay work time, “however small” that time might be. (Sandifer, supra, 134 S.Ct. at p. 880, fn. 8, quoting 29 C.F.R. § 785.47.) The Lindowtestis no less strict, and similarly requires that the administrative difficulty of recording the time and other factors be considered. (Lindow, supra, 738 F.2d at p. 1063.) 33 “very short” does not alone “justify application of the de minimis doctrine” because a court must consider other factors].) Indeed, courts have declined to find the time de minimis whereitis practical to record the time, evenif it is small. (E.g., Rutti, supra, 596 F.3d at p. 1059; Gillings, supra, 583 F.App’x at p. 715 [reversing summary judgment for employer because the regularity of the time and lack of any “evidence whatever of the administrative difficulty of recording the time” “outweigh[ed] the brevity of the periods of time at issue”].) 7. Troester’s Argument That Employers Will “Abuse” The De Minimis Rule Is Unfounded. Troester argues that federal courts have “{w]arned”that the de minimis rule can be “{e]Jasily [a]bused” and have “[e]ven [s]earched for [w]ays” to avoid applying it. (AOB 35-36.) But the authorities he cites simply confirm the protective nature of the Lindow test, where, depending on howthe facts of a specific case align with the relevant factors, trivial amounts ofwork time might or might not need to be paid. (Lindow, supra, 738 F.2d at pp. 1062-1063 [“amountofdaily time,” “administrative difficulty of recording small amounts of time,” and “size of aggregate claim”are, inter alia, factors to consider and balance].) Addison v. Huron Stevedoring Corp. (2d Cir. 1953) 204 F.2d 88, which Troester correctly states stands for the proposition that employers may not “arbitrarily” refuse to count small amountsofwork time,is in accord. (AOB 36 [citing 29 C.F.R. § 785.47, which acknowledges Addison and outlines application of de minimis rule to FLSA wage claims).) In Addison, the Second Circuit found it “capricious” to simply disregard any workweekin which the recoverable amount“is less than $1.00,” but permit recovery for any workweek in which it was $1.00 or more. (Addison, supra, 204 F.2d at p. 95; Lindow, supra, 738 F.2d at p. 1063 [citing Addison and noting that an employer cannotsimply “compensat[e] one 34 worker $50 for one week’s work while denying the samerelief to another worker who has earned $1 a week for 50 weeks.”].) Such an arbitrary result would not, of course, comport with the inquiry that both Lindow and Section 785.47 require. (Lindow, supra, 738 F.2d at pp. 1062-1063 [“[E]ven small amountsofdaily time [must be paid] unless that time is so miniscule that it cannot, as an administrative matter, be recordedfor payrollpurposes.”), emphasis added; accord 29 C.F.R. § 785.47.)!° Thus, Troester’s argument that adopting the de minimis rule will enable employersto “arbitrarily refuse to count hours worked”is incorrect. (AOB 36.) Employers would not be granted the discretion to do what Lindow and Section 785.47 expressly forbid. His argumentthatit “defies reason”“to pay an employee for four hours worked in one day”but not for “one minute [per day] over 250 days”fails for the same reason. (AOB36.) It ignores the fact that it may be practical to record and pay the former but not thelatter. (0 Moreover, when Addison was decided in 1953, $1.00 per week was more than an hourofwork at the minimum wage. (5 ER 807-808.) 35 IV. CONCLUSION For all the foregoing reasons, the de minimis test outlined in Anderson and Lindow equally applies to wage and hour claims underthe California Labor Code. Respectfully submitted, Dated: January 24, 2017 AKIN GUMP STRAUSS HAUER & FELD LLP By (ey &cbyl ~ Rex S. Heinke Attorneys for Defendant and Respondent Starbucks Corporation 36 CERTIFICATE OF COMPLIANCE [Cal. Rules of Court, Rule 8.204(c)] This brief consists of 8,561 words as counted by the Microsoft Word version 2010 word processing program used to generate thebrief. Dated: January 24, 2017 AKIN GUMP STRAUSS HAUER & FELD LLP RexS. Heinke Attorneys for Defendant and Respondent Starbucks Corporation 37 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the County of Los Angeles, State of California. I am overthe age of 18 and not a party to the within action; my business address is: 1999 Avenueofthe Stars, Suite 600, Los Angeles, California 90067. On January 24, 2017, I served the foregoing document described as: RESPONDENT’S ANSWERBRIEF ONT MERITSonthe interested parties below,using the following means: ShaunSetareh Louis Max Benowitz ThomasAlistair Segal Law Office of Louis M. Benowitz H. Scott Leviant 9454 Wilshire Blvd., Penthouse 3 Setareh Law Group Beverly Hills, CA 90212 9454 Wilshire Blvd., Suite 907 Beverly Hills, CA 90212 David Glenn Spivak Spivak Law Firm 9454 Wilshire Blvd., Suite 303 Beverly Hills, CA 90212 &X] BY UNITED STATES MAIL I enclosed the documentin a sealed envelope or package addressed to the respective addresses ofthe parties stated above andplaced the envelopes for collection and mailing, following our ordinary businesspractices. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal. Service, in a sealed envelope with postage fully prepaid at Los Angeles, California. &] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 24, 2017, at. Los Angeles, California. Y Serena L. Steiner a {Print Name of Person Executing Proof] [Signature] / on