“Off the clock” cases are those in which employees are not paid for all of the time they spend working. California courts have recognized that where an employer has either “actual” or “constructive” notice that an employee is working, the employer must pay the employee for that time. See Morillion v. Royal Packing 
Co. (2000) 22 Cal.4th 575, 585; White v. Starbucks (N.D.Cal.2007) 497 F.Supp.2d 1080, 1083.
“Actual” means that the employer actually knew that the employee was working. “Constructive” means that the employer should have known that the employee was working. The constructive prong of this test is important: It means that an employer cannot avoid its obligation to pay an employee by intentionally ignoring the fact that that employee is working.
A recent decision from the First District Court of Appeal clarifies what a plaintiff must show in order to win in an off the clock case. In Jong v. Kaiser Foundation (2014) 2014 DJDAR 6311, Henry Jong, one of the named plaintiffs, claimed that Kaiser had policies and practices that required him to work off the clock. Specifically, Kaiser required certain pharmacy managers to perform a series of duties, while at the same time forbidding them to work overtime. The pharmacy managers could not complete their duties within a normal 40 hour week. Thus, according to Mr. Jong, he and others were forced to work off the clock.
The superior court of Alameda County, the Honorable Wynne Carvill presiding, granted summary judgment, dismissing Mr. Jong’s off the clock claims. The First District Court of Appeal agreed with Judge Carvill, and applied an analysis that will be helpful to future plaintiffs bringing off the clock claims:
First, the Court of Appeal noted that the fact that many pharmacy managers had worked off the clock before they were reclassified as non-exempt was not relevant to whether Kaiser was aware that pharmacy managers were working off the clock after the reclassification. (Jong involved a situation in which Kaiser had previously classified the pharmacy managers as exempt, meaning they were not entitled to overtime. After a prior lawsuit, Kaiser reclassified the pharmacy managers as nonexempt.)
Second, evidence that Kaiser knew that other pharmacy managers were working off the clock did not prove that Kaiser knew that Mr. Jong was working off the clock. This was true even though a Kaiser manager had admitted in an email that he had gotten reports of some off the clock situations. Thus, plaintiffs must be careful not to rely too heavily on whether the employer was aware of other employees working off the clock.
Third, Mr. Jong presented evidence showing gaps of time between when he turned off the alarm at his store and when he punched in. The Court of Appeal noted that this did not prove that Mr. Jong had been working during that gap in time. Furthermore, the existence of this data did not mean that Kaiser should have known that Mr. Jong was working off the clock.
Off the clock cases remain viable. However, they are getting more challenging. In Brinker v. Superior Court (2012) 53 Cal.4th 1004, the California Supreme Court described some of the challenges that such cases face. For example, if an employer has an actual policy banning off the clock work, a court will presume that there is no such work taking place. Id. at 1051-1052. Employees can rebut this presumption by showing that they did work off the clock. However, this type of individual inquiry make it hard to certify off the clock cases as class actions. Id. at 1052. Similarly, in another recent case, the Central District of California granted summary judgment in an off the clock case. See Douglas Troester v. Starbucks Corp. et al, Case No. CV 12-7677 GAF (PJWx). In that case, the court held that the amount of time between when the employee punched out and when he actually stopped performing all of his job duties was too small (de minimis) to support a claim.
The attorneys at Hunter Pyle Law have handled significant off-the-clock cases. Attorneys Hunter Pyle and Tanya Tambling recently resolved a case in which a woman was required to clock in before her shift started at a local restaurant. The employer in that case paid that woman $150,000 shortly after we filed her claim. If you would like a free consultation regarding your workplace issues, including any concerns that you may have about working off the clock, please feel free to contact us at inquire@hunterpylelaw.com or 510.444.4400.