° 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.

Document 477 Filed 11/19/10 Page 42 of 47 37 Inc., 610 F.Supp.2d 499, (D.Md. 2009)(court relied on experts for the amount of uncompensated time thus there was no administrative difficulty); Lindow at 1063 (stating that employers “must compensate employees for even small amounts of time unless that time is so miniscule that it cannot, as an administrative matter, be recorded for payroll purposes”); Kasten v. Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 954 (W.D.Wis.2008) (rejecting employer's request for summary judgment on de minimis defense and holding, as a matter of law, that donning time was not de minimis where employer conceded that it would not be administratively difficult to record donning time); Saunders v. John Morrell & Co., No. C88-4143, 1992 WL 531674, *2 (N.D.Iowa Oct. 14, 1992)8 (“The Court is not persuaded that Morrell cannot calculate the amount of time its employees spend cleaning safety equipment in this day of technology”); see also 29 C.F.R. § 785.47 (“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 time he is regularly required to spend on duties assigned to him”.).

However, assuming, arguendo, that other limited activities not otherwise excluded from time worked by the terms of Section 3(o) are compensable, the de minimis doctrine precludes any recovery. The de minimis rule applies to render non-compensable “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes....” 29 C.F.R. § 785.47. As the Supreme Court remarked in Anderson v. Mt. Clemens Pottery Co., supra, 328 U.S. at 692, 66 S.Ct. at 1195, “[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded[, for] split-second absurdities are not justified by the actualities or working conditions or by the policy of the [FLSA].”

An employer may not arbitrarily fail to count as hours worked any part, however small, ofthe employee's fixed or regular working time or practically ascertainable period oftime heis regularly required to spend on duties assigned to him. 29 C.F.R. 785.47 (Emphasis added).' Nothing analogousexists within California’s Labor Codeor the [WC’s Wage Orders.

It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); see also 29 C.F.R. § 785.47. Case 1:08-cv-00378-WMS-LGF Document 426 Filed 12/07/12 Page 53 of 69 - 44 - An assessment of this defense will necessarily require individualized consideration of each sliver of time allegedly worked by each plaintiff and putative class member.

.13 Pursuant to the DOL’s implementing regulation, the narrow “de minimis” exception “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.” 29 C.F.R. 785.47 (emphasis added). If it is feasible for the employer to record the time, then the employer cannot escape liability for paying its employees for this time by relying on the de minimis rule.

The courts have held that such trifles are de minimis.” 29 C.F.R. § 785.47. “An important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work.” Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir.1984) (emphasis added).

Case: 1:12-cv-07273 Document #: 180 Filed: 12/18/15 Page 10 of 17 PageID #:2332 - 11 - payroll purposes, may be disregarded.” 29 C.F.R. § 785.47. Here, the “aggregate amount of compensable time” alleged by Plaintiffs is nominal at best.

Tyson responds that issue preclusion cannot apply because the order in question awarded partial summary judgment, rendering it an interlocutory order subject to revision, as well as one that did not result in a final judgment because the parties later settled the case. “Issue preclusion bars relitigation of an issue when: (1) the identical issue was raised and actually litigated in a prior proceeding; (2) the determination of the issue was necessary to the outcome of the prior proceeding; (3) the prior proceeding resulted in a final judgment on the merits; and (4) the party against whom issue preclusion is sought had a full and fair opportunity 7 While Tyson originally asserted that some or all of the employees’ claims were barred by the de minimis doctrine, which allows an employer to disregard otherwise compensable work time when only a few seconds or minutes of work are in dispute, see 29 C.F.R. § 785.47, Tyson recently withdrew that affirmative defense to liability. (Docket No. 260 at 1).

69,094 (E.D. Va., 1955), holding that 10 minutes a day is not de minimis. 29 C.F.R. § 785.47. The Ninth Circuit has created a three part analysis used to determine whether the amount of time spent performing activities was de minimis.