In California, hourly and non-exempt employees have to clock in and out of work. This includes tiny amounts of work done outside of work hours. Employers cannot demand or allow work off the clock, though they can round your work time up or down provided that certain requirements are met.
Non-exempt and hourly employees clock in and out
Federal law requires employers to track the number of hours worked by their:
- hourly workers, and
- workers who are not exempt from minimum wage and overtime laws.[1]
Tracking these hours is required in order to know:
- the amount of wages that you have earned,
- whether you are entitled to overtime pay, and
- if you are making at least the minimum wage.
Your employer must know these things in order to comply with state and federal labor law. The federal Fair Labor Standards Act (FLSA) and California labor law require pay over your regular rate for overtime hours,[2] the minimum wage,[3] double time pay for extra-long days,[4] and that you be paid for all work performed.[5]
Employers do this by requiring their workers to clock in when they start working and to clock out when they are done. Note that this does not cover workers like:
- independent contractors, or
- exempt workers or salaried employees.
California labor law and the de minimus rule
A problem arises when small work tasks must be done before clocking in or after clocking out. California handles this problem differently than federal law.
Federal law allows for tiny, work-related tasks to be done off the clock.[6] This is the “de minimus rule.” “De minimus” is Latin for “concerning trifles,” or insignificant things. Federal courts have ruled that even work-related tasks that took several minutes were considered de minimus.[7]
For example: Steel workers are required to put on 12 kinds of protective gear before clocking in, and to take them all off after clocking out. According to the U.S. Supreme Court, this was deemed to be a de minimus work task:
Because split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act, such trifles as a few seconds or minutes of work beyond the scheduled working hours may be disregarded.[8]
California law, however, offers workers more protection. State law explicitly states that you are entitled to receive “all wages earned.”[9] This implies that there is no exception for de minimus work. Recently, the California Supreme Court ruled that this was the case and that California labor law does not follow the de minimus rule. Work-related, trivial tasks must be done on the clock.[10]
No working off the time clock
California employers are forbidden by state and federal law from requiring or allowing you to work off the clock. This includes work done:
- before or after clocking in or out, or
- during a meal period or rest break.
Note that your employer can violate this rule by letting you work off the clock. This does not require a demand or even just a request that you work. However, it does require that your employer knows or should know that it is happening.
The employment lawyers at our law firm have found that lots of companies have policies in place that regulate off-the-clock work. These often require prior written approval for work done off the clock. Violating this policy by working off the clock can lead to disciplinary action.
Clock rounding rules
Federal and California employment law currently allows employers to round working hours to the nearest interval, rather than making them pay you for every minute or second that you work. However, this rounding process has several important rules:
- it must round to the nearest increment,
- it cannot always round the number of working hours downwards,
- it has to be fair and neutral in theory, and
- it cannot routinely lead to underpayment when applied.[11]
Our employment attorneys have found that employers typically round to the nearest 15 minutes or quarter-hour. This allows for the “7 minute rule,” where:
- the first 7 minutes to the increment, 1 through 7, are rounded down, and
- the final 7 minutes, or 8-15, are rounded up.
Other common time clock rules are:
- 5-minute rounding, which creates the “2.5 minute rule,” and
- 6-minute rounding, which creates the “3 minute rule” and makes timekeeping easier because it divides the hour into 10 intervals.
Clock rounding rules also apply to rest and meal breaks. Employers cannot round to the nearest increment in order to deprive you of the full duration of your break.[12]
Employers often favor rounding because it makes it easier to pay you your wages. The money will be in reliable amounts, rather than have small variations between pay periods.
However, a recent California Appellate Court case may challenge the practice of rounding work hours under California wage and hour laws. That case suggested that, when the employer has the timekeeping technology to track a worker’s precise hours, it is required to pay them for all hours the employee works.[13] This could affect state time clock laws and rounding policies. Our employment lawyers are monitoring these legal developments closely.
Employer discretion for employee time tracking
There are no laws or regulations that dictate how working hours are to be tracked. So long as it produces a complete and accurate time record of your workday and workweek, it suffices.[14] Employers can use:
- punch cards or time cards,
- paper timesheets,
- a timekeeping machine that scans your ID badge to record your arrival and departure, or
- a phone app that sends notifications to your boss.
In California, if the clock system and payroll records that are used can capture the specific time you clock in and out, it may soon be the case that your employer can no longer round your total hours of work.
Legal Citations:
[1] 29 CFR 516.2(a).
[2] 29 USC 207 and California Labor Code 510 LAB.
[3] 29 USC 206 and California Labor Code 1197 LAB.
[4] California Labor Code 510 LAB.
[5] California Labor Code 204 LAB.
[6] 29 USC 203(o) and Anderson v. Mt. Clemens Pottery Co., 66 S.Ct. 1187 (1946).
[7] Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984).
[8] Sandifer v. U.S. Steel Corp., 134 S.Ct. 870 (2014).
[9] California Labor Code 204 LAB.
[10] Troester v. Starbucks Corp., 5 Cal.5th 829 (2018).
[11] See See’s Candy Shops, Inc. v. Superior Court, 210 Cal.App.4th 889 (2012).
[12] Donahue v. AMN Services, LLC, No. S253677 (2021).
[13] Camp v. Home Depot Inc., 84 Cal.App.5th 638 (2022).
[14] U.S. Department of Labor, Wage and Hour Division, “Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA),” (July 2008).
