By: Lois M. Kosch
Lois M. Kosch is a partner at Wilson Turner Kosmo. She specializes in counseling and representing employers in all aspects of employment law and litigation. Ms. Kosch is a former member of the Labor and Employment Law Section's Executive Committee.
Corbin v. Time Warner Entm't-Advance/Newhouse P'ship, No. 13-55622, 2016 U.S. App. LEXIS 7896 (9th Cir. May 2, 2016)
Employer utilized a rounding policy that rounded all employee time stamps to the nearest quarter-hour. For example, an employee clocking in at 8:07 a.m. would see his wage statement reflect a clock-in of 8:00 a.m., crediting him with seven minutes of work time for which he did not actually work. Similarly, an employee clocking out at 5:05 p.m. would see her wage statement reflect a clock-out of 5:00 p.m., deducting five minutes of time she actually worked. Plaintiff claimed the rounding policy deprived him of earned overtime compensation. In addition, plaintiff alleged he had once worked one minute off the clock and had not been paid. The district court granted summary judgment, which was affirmed on appeal.
The U.S. Court of Appeals for the Ninth Circuit found the employer's rounding policy to comply with federal regulations codified at 29 C.F.R. § 785.48(b), which, for more than fifty years have endorsed the use of rounding practices. Plaintiff argued that if an employee loses any compensation due to a rounding policy, that policy should be found to violate the federal rounding regulation. (In the course of his nearly four years of employment, plaintiff lost $15.02 due to the rounding policy.) The court rejected plaintiff's interpretation, noting that plaintiff's reading of the regulation showed a misunderstanding of the purpose of a rounding policy. With such policies employees sometimes come out ahead and sometimes behind, but the policy is meant to average out in the long term. A rounding practice that permits both upward and downward rounding, as was the case here, is neutral, and was not subject to supervisory editing. As such, it passed muster.
As for plaintiff's claim of working one minute off the clock, the court of appeals agreed that this time was non-recoverable de minimis time, noting that the de minimus doctrine is not an affirmative defense and, as such, was not barred from being considered because of the employer's failure to affirmatively state it in its responsive pleading.
