ities conducted by a truck driver or truck driver’s assistant on the site of the work that are essential or incidental to the transportation of materials or supplies to or from the site of the work, such as loading, unloading, or waiting for materials to be loaded or unloaded, but only where the driver or driver’s assistant’s time spent on the site of the work is not de minimis; and(E) Any transportation and related activities, whether on or off the site of the work, by laborers and mechanics employed in the construction or development of the project under a development statute.In regards to whether a driver’s time spent on the site of the work is “de minimis,” and thus not subject to the Davis-Bacon Act labor rules, the DOL did not define what would constitute “de minimis” time. Instead, the DOL intends to review this issue on a case-by-case basis:However, whereas the proposed rule sought to borrow language from the Department’s regulatory definition of de minimis under the FLSA, see 29CFR 785.47, the final rule is not defining de minimis in the regulation for several reasons. First, the Department did not propose a definition for the term in the NPRM. Second, the Department’s historical practice has been to evaluate de minimis under the DBRA on a case-by-case basis…. To the extent warranted, the Department will consider whether to further elaborate on the definition of de minimis in sub-regulatory guidance.While the DOL did not define “de minimis,” its notice of final rulemaking did identify two general principles that would apply. The first principle is that guidance and precedent under the Fair Labor Standards Act regarding what constitutes “de minimis” time does not apply or govern:First, the de minimis standard under the DBRA is independent of the de minimis standard under the FLSA…. The DBRA’s de minimis principle…informs the different inquiry of whether a worker is “employed directly on the site of the work.” Thus, the Department has generally held that it excludes peri

Businesses that decide not to pay overtime-eligible employees for vaccination, testing, or screening outside of regular working hours should be prepared to defend the decision in what may be a case of first impression in their jurisdiction. For many employers, the costs, burdens, and disruptions of defeating a claim for compensation may well exceed the expense of paying for the time in the first instance.Might the De Minimis Rule Apply?The de minimis doctrine was first articulated by the Supreme Court in its 1946 decision in Anderson v. Mt. Clemens Pottery Co., and later codified at 29 C.F.R. § 785.47. Under that rule, “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.”

This can be accomplished by adding sufficient time to employees’ daily timesheets or asking employees to record the time spent measuring their temperature or standing in line.* 29 C.F.R. 785.47** Castaneda v. JBS USA, LLC, 819 F.3d 1237, 1243 (10th Cir. 2016), as amended on denial of reh’g and reh’g en banc (May 3, 2016)*** Troester v. Starbucks Corp., 5 Cal. 5th 829, 848, 421 P.3d 1114, 1125 (2018), as modified on denial of reh’g (Aug. 29, 2018)**** See IBP, Inc. v. Alvarez, 546 U.S. 21, 40, 126 S. Ct. 514, 527 (2005)

See, e.g., Aguilar v. Mgmt & Training Corp., 948 F.3d 1270, 1284 (10th Cir. 2020); Lyons v. Conagra Foods Packaged Foods LLC, 899 F.3d 567, 584 (8th Cir. 2018).The United States Department of Labor (“DOL”) has likewise recognized the de minimis principle, codifying the defense at 29 C.F.R. § 785.47, though cabining it to “where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities.” The regulation further provides that “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”

Because the Frlekin decision applies retroactively, employers who may face risk based on past practices should consider whether to compensate for disputed past time worked in exchange for a release of claims.FOOTNOTE1 29 CFR section 785.47

The wage-hour regulations provide that: “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be recorded for payroll purposes, may be disregarded.” [29 C.F.R. §785.47] These bits of time are further described as uncertain and indefinite periods involving a few seconds or minutes duration, where failure to record time is justified by business realities. The Supreme Court has referred to such bits of time as “de minimis,” meaning too trivial or minor for consideration.

[10]Occupational Information Network.[11] 29 C.F.R. § 785.47[12] WHD points to the example of a waitperson vacuuming after the restaurant closed being subject to the tip credit. Opinion Letter FLSA 2018-27 at n.4 (citing WH-02 (Mar. 28, 1980)).

There is “no limitation” to the amount of these duties that may be performed, “as long as they are performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing” direct service to customers. The tip credit may not be used for any task not contained in the O*NET list, unless the task is subject to the de minimus rule in the FLSA regulations at 29 CFR §785.47. The WHD’s former 80-20 guidance created a hard and fast enforcement rule involving when duties are “related duties” under the FLSA and its implementing regulations.

This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.... 29 C.F.R. § 785.47 (emphasis added). Though previous courts have held that daily periods of less than 10 minutes are de minimis – Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984) (collecting cases) – recent cases confirm that “[t]here is no precise amount of time” that is considered de minimis.

In Castaneda v. JBS USA, LLC, 2014 U.S. Dist. Lexis 62390 (May 6, 2014), the court said that "[t]here are conflicting views in the courts concerning the application of the common law doctrine of de minim[i]s to these cases and Justice Scalia expressed doubt about its application in Sandifer. The [U.S. Labor Department] has, however, adopted it in 29 C.F.R. § 785.47 . . .. That fits this case."And in Jones v. C&B Technologies, Inc., 2014 U.S. Dist. Lexis 39009 (S.D. Ind. Mar. 25, 2014), the court noted that the activities at issue there counted as compensable time, unless the de minimis principle applied. Yet another ruling, in Hernandez-Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. Lexis 23662 (S.D. Ga. Feb. 13, 2014), cited Sandifer but observed that "the de minimis exception might apply to certain claims."