Jeff Ruzal Featured in “Bits of Unpaid Worker Time Pose Big Liability Risk for Companies”

Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was featured in Bloomberg Law Daily Labor Report, in “Bits of Unpaid Worker Time Pose Big Liability Risk for Companies,” by Jennifer Bennett. (Read the full version – subscription required.)

Following is an excerpt:

Connecticut’s top court is poised to join those in California, Pennsylvania, Maryland, and elsewhere confronting whether and when state law lets employers avoid paying for short periods of worker time. …

The suits involve small amounts of time but potentially large numbers of workers and can quickly add up to millions of dollars in corporate savings—or liability.

A concept known as the de minimis doctrine sometimes allows companies to avoid paying for seemingly negligible amounts of time spent on otherwise compensable pre- and post-shift tasks, providing an out for the employers facing some of those suits. The defense is available in federal Fair Labor Standards Act cases, but over the past decade, some courts have ruled that it doesn’t give employers a free pass for claims arising from certain states’ wage laws.

The exception is meant to cover short periods that “can’t easily be captured” on a time sheet, but it’s “really hard to specify a range” because whether the defense applies depends on multiple factors, said Epstein Becker & Green PC’s Jeff Ruzal, who defends employers facing wage litigation.

In “robust” class or collective cases, the aggregate unrecorded time could represent a “much larger” total amount, which could diminish the defense that individual tasks took only a few minutes, Ruzal added. Even where the exception is asserted, its application is “heavily scrutinized by courts,” he said. …

Tracking Time

Many states’ wage laws track the FLSA, and those that don’t explicitly prohibit the de minimis exception likely permit it, Ruzal said. Where states haven’t explicitly answered the question one way or another, “their particular laws and regulations” are key to analyzing the defense’s availability, he said.

Retail, hospitality, and other employers who want to avoid needing the defense can implement and enforce policies prohibiting off-the-clock work, Ruzal added.