Michael Kun Quoted in "Calif. High Court's Starbucks Decision: Bombshell or Blip?"

Businesses in the Golden State are bracing for an uptick in wage-and-hour suits following the California Supreme Court’s recent ruling that a federal doctrine blocking workers from suing over brief periods of unpaid time didn’t doom a proposed class action against Starbucks Corp., but a key question still lingering after the ballyhooed decision means a flood of successful class actions is far from inevitable.

Attorneys for workers have praised the court’s partial rejection of the de minimis doctrine, saying it paves the way for suits bringing wage-skimmers to justice. Meanwhile, some advisers for employers say the ruling opens their clients up to costly class suits for the sin of being bound by the practical realities of business.

But whether the ruling in Troester v. Starbucks is a bombshell or a blip may hinge on a question the California Supreme Court didn’t answer: Can de minimis claims generally serve as the basis for class actions, or do the specifics of why and when workers perform mere minutes of unpaid off-the-clock work preclude group litigation?

“Courts regularly, if not routinely, deny certification of off-the-clock claims precisely because they require these individualized inquiries,” said Epstein Becker Green wage-and-hour practice group co-chair Michael Kun, who practices in Los Angeles. “Troester doesn’t change that at all.” …

But Kun isn’t convinced many employers will need to adopt these defensive measures. Though workers and their attorneys may now bring suits seeking what was previously seen as de minimis pay for classes of workers, there’s a big obstacle in their way, he said: proving commonality.

To certify a class action under California law, workers must show their claims share a common thread. For example, job applicants suing a company for not hiring blacks have to show the business discriminated against them through a standard policy or practice.

It’s already hard for workers to certify claims for longer periods of off-the-clock work because this time is undocumented by its nature, Kun said, meaning courts often have to look at each worker individually to decide how much they’re owed. This will be even harder when the claims cover a minute or two of work at a time, he said.

“I’ve heard about employers that have heard from their lawyers that this decision somehow means now they need to start cutting multimillion-dollar checks to resolve class actions,” Kun said. “If that’s what they’re hearing from their lawyers, they need to hire some new lawyers.”