Minimal Tasks Performed Supreme Court Ruling Not So Trivial For CA Employers

Douglas Troester’s suit against coffee giant Starbucks might have only been to recoup a small amount of money that he felt was due, but the implications of the suit’s ruling regarding minimal tasks performed by employees may have a significant impact on employers across California.

Douglas Troester’s claim was that Starbucks failed to compensate him for the time he spent closing the coffee store. During his 17-month employment, Starbucks allegedly failed to compensate him for the time he spent locking the doors after his shift, turning on the alarm, and when necessary, reopening the door when customers left their belongings behind. A class- action lawsuit was filed under the California Labor Code that totaled unpaid wages in the amount of $102.67.

Starbucks responded by filing a motion for summary judgment to dismiss the case due to the federal de minimis rule. Although the trial court ruled in Starbucks’ favor, the case was appealed in the California Supreme Court. Their subsequent decision is likely to have an impact on wage tracking requirements, the structuring of work hours for employees, and how businesses estimate the time it takes to perform tasks.

What is the de minimis rule?

The appellate court dismissed the case due to the federal de minimis doctrine. The de minimis doctrine is a defense to state and federal laws requiring that hourly workers track and be paid for all time worked. Under the Fair Labor Standards Act (FLSA), employers are able to defend themselves against claims for unpaid wages for small amounts of time that may be too impractical to track.

Federal courts had previously analyzed a variety of factors in determining whether an employer was warranted in disregarding the time as “de minimis.” Similarly, prior to the Troester case, certain federal courts in California had held that employers did not need to pay wages for minutes spent outside shifts that were not practical to track.

What the Supreme Court ruled

The Troester decision, however, rejected the de minimis federal application (and some prior California decisions), thereby requiring employers to compensate employees for small tasks performed when employees are technically “off the clock.” The new rule will likely create tracking difficulties for employers, especially now they are required to compensate employees for this time.

For example, the time that it takes an employee to walk to and from their car might come into question. If a person works in an event industry and they are required to park far away and walk to the venue, they might be able to demand compensation for their time walking.

And if these employees are required to be compensated, how much time are they required to be paid? Many factors can come into play to affect the amount of time that one employee takes over from another and how to fairly compensate them for that time. In the Troester case, the plaintiff was asked to “estimate” the amount of time it took him for minimal tasks performed. This does not provide employers with very clear guidelines, and could lead to a massive influx of class-action claims.

Why the California Supreme Court rejected the de minimis doctrine

The California Supreme Court contended that employers are in a better position to implement technology-based systems that can prevent failure to compensate employees for this additional time. However, they admitted that for specific industries, it can create an extremely challenging administrative burden.

The court did not say that the de minimis rule can never apply, but it strictly limited an employer’s ability to rely on it alone. Therefore, it appears the Supreme Court of California has left businesses to fend off class action suits on their own.

What are the implications for employers in California regarding minimal tasks performed?

What the rule means for employers in California is that they must compensate employees for all time, even after their shift, regardless of whether the task seems menial and relatively insignificant. Minimal tasks performed might no longer be minimal at all.

If you are an employer in the state of California, it is vital that you know how the new ruling will affect how you record, estimate, and pay for “off-hour” tasks, and if there is indeed such a thing as “off-hour” tasks at all. To ensure that the implications of this ruling won’t leave your company vulnerable to a class-action suit, contact Trestle Law today.


What is a DBA?

A lot of new clients frequently ask me, “What is a DBA?” which is almost always followed up with, “Do I need one?” So what is a DBA? A DBA (“Doing Business As”) is also known as a Fictitious Business Name statement, and it is a name that you select to “do business as,” that is anything other than your company’s legal name. If you are a legally formed entity – think LLC (limited liability company), corporation, LLP (limited liability partnership), LP (limited partnership), or any other registered entity with your state’s Secretary of State – then you will need a DBA if you are conducting business as anything other than the name you registered with the Secretary of State when you initially formed your business entity. This is also known as your company’s “legal name.” For example, if you are an ice cream company, and you choose the name The Great Ice Cream Company, LLC with your state’s Secretary of State, then you must do business as The Great Ice Cream Company, LLC, otherwise you must get a DBA.

What Is a DBA? Do I Need One?

If you are a sole proprietor, you will need a DBA if you are doing business as anything other than your legal name. For example, my name is Kristen Roberts. If I were running my law practice, Trestle Law, as anything other than my legal surname or full name in combination with the services I offer, then I would need a DBA. For example, I likely wouldn’t need a DBA if I decided to open “The Law Offices of Kristen Roberts.” However, since I operate my business as Trestle Law, I would need a DBA – and I have one.

DBAs are not registered at the state level, but at the county level. Generally speaking, you fill out the necessary paperwork, take it to your local county recorder’s office, pay the fee, take the completed forms to a local newspaper (or sometimes you can do this online), and publish it for a number of weeks. You will then receive notice that your DBA has been approved.

Visit Your County Recorder for More Info.

Overall, DBAs should not be overly confusing, but the rules will vary from state to state and county to county. If you are still unsure as to whether you need a DBA or are still asking yourself, “What is a DBA?” I highly recommend you talk with an attorney in your area. Most (including my firm) offer DBA services for very low costs.

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Missouri AG isn’t Playing ‘Chicken’ with California

I don’t know about you, but I LOVE eggs. I eat eggs almost every day for breakfast. Eggs are delicious and incredibly healthy. Don’t believe me, go read CaveGirl Eats’ book, “EAT THE YOLKS.” So, naturally, when I see news about eggs, I’m immediately interested.

For those of you who do not follow the goings on in the agricultural industry, you probably completely missed that little lawsuit filed by Missouri’s Attorney General Chris Koster in the beginning of February. In case you had your head up a chicken’s bum during that time and are wondering what got Koster’s feathers ruffled to begin with, let me illuminate.

Very simply, Koster filed a Federal suit against California over chicken coops. I know, you must think I’m joking, but I assure you, I am not. In 2008, California voters approved Proposition 2; a ballot initiative that required all California farmers to provide larger enclosures to egg laying hens. California farmers became concerned that the new regulations would increase their costs, and put them at a competitive disadvantage with other egg farms across the country, as those farmers were not beholden to California’s more strict caging requirements. in 2010, as a result of the growing concern, the state legislature passed a measure requiring out of state producers to comply with California’s rules.

Are you following this so far? California gets pressure from various animal rights groups (most notably the Humane Society) to treat egg laying hens (and other farm animals) more ethically. California enacts law to require bigger cages. Farmers worry, because bigger cages means larger operating costs for farmers. That cost necessarily gets passed on to consumers when they buy their eggs. Those more expensive eggs get sold at the store next to cheap eggs from a different state where the California regulations do not exist. You (consumer) look at a dozen eggs for $6 or a dozen for $4, and more often than not, you will buy the cheaper eggs. So, to keep the playing field “fair,” (and of COURSE to promote public health and safety) California says anyone selling eggs in our state has to comply with our regulations. The caging requirements go into affect in 2015 for California farmers, with all out of state farmers to follow suit by the end of that year.

Naturally, this really boiled Missouri’s egg. While Missouri doesn’t even rank in the top 10 egg producing states in the country, it does send approximately 540 million of its 1.7 billion eggs to the California market. However, this situation does beg the question as to why Missouri, is stepping up to the plate to bring this lawsuit against California?

AG Koster stated that it is his job to fight against out of state “legislation that imposes new requirements or limits on  Missouri businesses.” He goes on to state that requiring egg farmers to comply with California larger coop requirements is a violation of the Constitution’s Commerce Clause, which prohibits any state from enacting legislation that regulates  conduct wholly outside its borders, protects its own citizens from out-of-state  competition, or places undue burdens on interstate commerce. Not to mention, it will cause Missouri farmers to suffer increased costs just to do business with California.

Is this really about the constitutionality of California’s regulation, or is there perhaps something else going on? At the end of the day, egg farmers are running businesses. And nobody understands the agricultural business better than BigAgra (think companies like Monsanto).

Previously included in the recently passed Farm Bill (you know, the one that slashed SNAP benefits by billions of dollars), was an amendment backed by BigAgra interests known as the King Amendment (named after and authored by noted racist Iowa Republican, Steve King). The King Amendment purported to  “prohibit states from enacting laws that place conditions on the means of production for agricultural goods that are sold within its own borders, but are produced in other states.” Uh, I don’t know about you, but that looks quite obviously aimed at a particular California law. Thankfully, the King Amendment was dropped from the Farm Bill, but it begs the question: Why didn’t Iowa bring the suit against California? After all, Iowa is the largest producer of eggs in the country, and appears to have a much larger vested interest in seeing the California legislation defeated.

This takes me back to BigAgra and Big Agribusiness. Clearly, BigAgra and Big Agribusiness have a HUGE interest in keeping costs low and regulation at a minimum. This leads me to believe that the lawsuit filed by Missouri may be an attempt to get into the good graces of these giant conglomerates. Hello! Monsanto’s headquarters are in Missouri. Obviously, the companies that make up BigAgra do not want to change their business practices, if it ultimately means a loss in profits. Forget that the chickens cannot even stand up and turn around! Profits, people! It will be interesting to see how this lawsuit turns out. I imagine it could eventually be a measuring stick for future lawsuits to come regarding state attempts at exercising food safety and agricultural regulations across the country.


Naked Settles After Getting Caught with Its Pants Down

Like most folks who choose to live a paleo, whole-food lifestyle, I typically try to select products that are “non-GMO” (that’s Genetically Modified Organism to you). Now, I’m not going to get into the morality of messing with foodstuffs to create new foodstuffs. However, I will say that in theory, from a scientific standpoint, I don’t have an issue with modifying organisms and think that in the right hands, some good can actually come of it. IN. THE. RIGHT. HANDS. I do not believe the right hands are those of Big Agra or Big Food, nor do I believe food is being genetically modified for the right reasons. The corporations that own most (if not all) of the companies you know and love and consider “healthy.” Kashi? Yeah, owned by Kellogg. Stoneyfield Farms Organic/Brown Cow? Purchased by Groupe Danone. Tom’s of Maine? Colgate-Palmolive actually got you covered.

It’s at this point, that I would like to turn your attention to the Naked Juice brand. Owned by Pepsi Co, a class action lawsuit was brought against Naked Juice for labeling its products as “All-Natural” and “Non-GMO,” when in fact, they were using synthetic substances and genetically modified ingredients. Among the causes of action in the lawsuit were violations of California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. The causes of action were based on the fact that consumers are generally willing to pay a premium for foods that are Non-GMO and 100% natural, and Plaintiffs were financially injured when they relied on Naked’s false and misleading labeling of its products as “Non-GMO” and “100% Juice” when the products contained many synthetic ingredients as well as genetically modified ingredients.

Aside from the fact that Naked Juice wound up settling this claim with the Plaintiffs, I am interested specifically in the fact that the FDA still remains unwilling or, according to them — too underfunded — to be able to define the term “natural” when it is applied to our food. Perhaps the FDA prefers to simply remain out of the legal fray. Whatever the reason, the FDA’s unwillingness to provide any guidelines regarding the labeling of our food as “natural,” will continue the barrage of lawsuits brought by consumers who feel they have been misled. Further, food companies will continue to play fast and loose with the labeling of their products, because they are not beholden to anyone to ensure the food they deliver is what it claims to be. Until a class or defendant refuses to settle, thereby requiring the courts to make a determination, the term “natural” will remain a gray term with no real meaning, despite consumers wanting to believe they’re buying something healthy. While I do believe legal precedent will be set regarding the labeling of our food, I do not foresee a change coming soon enough. Until then, I believe it is important that consumers recognize the term “natural” has no significant meaning of any kind. Hopefully, the more light that is shed on cases such as this will encourage more consumers to consider buying food that is labeled in a way that is regulated, with enforced standards, such as organic foods.

Chew on This: Coalition Pushing for Healthier, Low-Cost Food Options

I, for one, am very excited about this prospect. 

SACRAMENTO — A coalition of organic farmers, nutritionists and environmental justice activists is jumping into the rough-and-tumble politics at California’s Capitol.

The California Food Policy Council, a network of 19 groups around the state, wants to persuade legislators to pass laws that would support sustainable agriculture and safeguard soil and water quality for large and small farmers. The idea, organizers say, is to make healthful, affordable food options available for low-income urban dwellers, schoolchildren and others.

“It’s a confluence of many different elements of what you could call the food movement,” said Michael R. Dimock, the president of an Oakland group, Roots of Change, that provides staffing and funding for the new organization.

Combating climate change is high on the agenda, he said. “If the climate goes crazy, it’s going to impact food production.”

The council, in a report, already is touting some successes, including the passage last year of bills that expanded access to fresh produce for food-stamp recipients, gave property owners a tax break for urban farms and gardens and cleared the way for driver’s licenses for immigrant farmworkers.

The coalition is also reaching out to the powerful agricultural industry, he said. “It’s not our goal to make Big Ag the enemy.”

via New coalition pushing for more healthful, low-cost food options –

Box Out the Noise

I seem to see new CrossFit gyms, or “boxes,” popping up left and right. For those unfamiliar with the CrossFit box’s “ideal” business locale, most  owners look to take up residence in commercial spaces, typically located in industrial parks. One reason these types of spaces draw box owners, is the fact a landlord may be more lenient with respect to noise in an area designed for industrial activity. All you CrossFitters out there know that we’re constantly dropping weights, and there can be a lot of noise and reverberations as a result (no, your grunting really isn’t that loud). While landlord leniency may — in theory — be generally true, it does not necessarily shield box owners from receiving noise and vibration complaints from neighboring businesses.


Typically, these issues don’t start out as issues for new box owners. But as membership size and attendance increase, owners can start to rub their neighbors the wrong way (especially if you and your members start chewing into the available parking — a topic for another day). So, what is a box owner to do when hit with neighbor complaints?

1. Look to the Lease:

There are many differences between commercial leases and residential leases. In California, many landlords choose to use “CAR” (California Association of Realtors) forms as either a template for the commercial lease, or the entire lease. However, commercial leases can be — and often are — custom documents drafted by the landlord’s representative. More often than not, these documents can be lengthy and include a variety of provisions relating to the lease terms itself and acceptable and unacceptable uses of the property. So, if you’re talking about opening a CrossFit box (or any fitness facility, for that matter), you want to be sure the lease contemplates your intended use — i.e. you want the lease to acknowledge that you’re using the property for what you discussed with the landlord. Even better, would be a provision acknowledging that loud noises are part and parcel to the operation of a CrossFit box. If the lease does not state how you plan on using the facility, there’s a higher chance you’ll be up s**t creek if and/or when complaints come down the pike from neighbors.

2. My Lease is Already Locked and Loaded:

If you’ve already signed a lease and your lease states you’re using the location as a CrossFit box, and noise is part of the deal (I won’t go into what happens if your lease doesn’t have these things), then generally speaking, a landlord can’t just kick you out (without going through a particular legal process, called an “unlawful detainer” action). Assuming you’re not violating any other provisions in the lease, the best way to resolve noise complaints is to discuss the situation with your landlord. If the landlord knew you’d be using his/her space as a CrossFit facility, knew that you and your members would be dropping weights, and knew that it would be generally loud during your hours of operation, then you can (and should) request the landlord remediate the situation. One such way box owners can remediate noise issues is to request beefed-up soundproofing in the facility. Often, a landlord will pay for some (or maybe all) of these costs, so you should discuss this with your landlord before doing it yourself.

3. Thinking “Outside the Box” for Your Location:

One situation I’m noticing more, are boxes that operate outside of industrial spaces. Urban areas that are densely populated do not often have a plethora of industrial parks to choose from. Box owners are often forced to get creative, which can lead to major issues. One such CrossFit box, CrossFit NYC, opened on Columbus Avenue on the Upper West Side of New York, on the basement level of a 31 story condominium building. The 12,000 sq ft establishment had sold over 350 memberships prior to opening its doors, planned on offering 800-1,000 memberships, and boasted over 500 classes per week. Unfortunately for that box, they did not get the proper permits from the city’s Board of Standards and Appeals (BSA) to run the box. At the time they opened, their application had been submitted — but not approved. The box opened without the permit, and a multitude of noise complaints ensued. An attorney was brought into the mix (dun, dun, DUN!), and 150 out of 167 residents signed and notarized an opposition to the permit pending before the BSA. The Board voted unanimously to rescind the box’s permit.

In that box’s case, it looks like a case of putting the plate before the barbell (see what I did there?). You always want to be sure your permits are squared away before operating your business, but this is just one example of noise complaints gone terribly awry.

At the end of the day, I always recommend box owners and those intending to open a box, consult with legal counsel to ensure their commercial leases are in order. It’s always easier to negotiate a lease before it’s signed.

No Touch for You!

Effective January 1, 2014, Section 113961 of the California Retail Food Code prohibits restaurant workers from touching ready-to-eat foods with their bare hands. Basically, this requires all restaurant workers to use gloves when handling food intended to be consumed by patrons. The old law simply required contact with bare arms and hands be “minimized,” and that handlers use utensils to assemble and plate food; unless however, the hands were washed in accordance with another section in the code, in which case, touch away.

The new law, takes all guesswork out of the question, “to touch, or not to touch?” You are no longer allowed to touch. Despite seeming very strict, this “No Touch” law doesn’t mean there are absolutely no exceptions. For example, if the food product is made of raw animal food, and is intended to be cooked immediately after handling, on all sides, to the minimum temperatures specified in subdivisions (a) and (b) of Section
114004 or in Section 114008, then touching is permitted. Also, if the food does not contain raw animal food, but all parts are to be heated to a temperature of above 165 degree Fahrenheit, touching is permissible.

Among the more convoluted exceptions are found in subdivision (f) of Section 113961. This section permits employees not serving a highly susceptible population to contact exposed,
ready-to-eat food with their bare hands, but only if all of the following occur:

  • (1) The permit-holder obtains prior approval from the regulatory authority. — OK, got it! Sounds easy enough.

  • (2) Written procedures are maintained in the food facility and made available to the regulatory authority upon request, that include all of the following: — Now you’re going to get tricky, aren’t you?

  • (A) For each bare hand contact procedure, a listing of the specific ready-to-eat foods that are touched by bare hands. — OK, so in my procedures, I need to list all foods to be touched…

  • (B) Diagrams and other information showing that hand washing facilities that are installed, located, and maintained in accordance with Sections 113953, 113953.1, and 113953.2, are in an easily accessible location and in close proximity to the work station where the bare hand contact procedure is conducted. — Now you’re telling me I need to look at these other sections to figure out if my hand washing facilities are installed, located, and maintained in accordance with those other sections, THEN I need to put a diagram up with that info close to where the food is handled. This is starting to get tricky. I won’t keep going, but you get the idea.

Here’s the rest of subdivision (f) for your digestion. Feel free to skip this if you’re not particularly interested in the technical mumbo-jumbo.

  • (3) A written employee health policy that details the manner in which the food facility complies with Sections 113949, 113949.1, 113949.2, 113949.3, 113949.4, 113949.5, 113950, and 113950.5, including all of the following:

    • (A) Documentation that food employees and conditional employees acknowledge that they are informed to report information about their health and activities as they relate to gastrointestinal symptoms and diseases that are transmittable through food as specified in Section 113949.1.
    • (B) Documentation that food employees and conditional employees acknowledge their responsibilities as specified in Section 113949.4.
    • (C) Documentation that the person in charge acknowledges the responsibilities specified in Sections 113949.5, 113950, and 113950.5.
  • (4) Documentation that food employees acknowledge that they have received training in all of the following:(D) Proper fingernail maintenance, as specified in Section 113968.

    • (A) The risks of contacting the specific ready-to-eat foods with bare hands.
    • (B) Proper handwashing techniques and requirements, pursuant to subdivision (a) of Section 113953.3.
    • (C) Where to wash their hands, as specified in Section 113953.1.
    • (E) Prohibition of jewelry, as specified in subdivision (a) of Section 113973.
  • (F) Good hygienic practices, as specified in Sections 113974 and 113977.

  • (5) Documentation that hands are washed before food preparation and as necessary to prevent cross-contamination by food employees, as specified in Sections 113952, 113953.1, and 113953.3 during all hours of operation when the specific ready-to-eat foods are prepared.

  • (6) Documentation that food employees contacting ready-to-eat foods with bare hands use two or more of the following control measures to provide additional safeguards to hazards associated with bare hand contact:

  • (A) Double handwashing.

  • (B) Nail brushes.

  • (C) A hand antiseptic after handwashing, as specified in Section 113953.4.

  • (D) Incentive programs such as paid sick leave that assist or encourage food employees not to report to work if they are ill.

  • (E) Other control measures approved by the regulatory authority.

  • (7) Documentation that corrective action is taken when the requirements specified in paragraphs (1) to (6), inclusive, are not followed.

So, it’s pretty clear that there are ways around this new law, but it’s not as easy as – say – posting a sign. In any event, I hope all you sushi chefs out there got that, because you’ll probably want to apply for some kind of exemption. So far, nothing indicates that any exemptions are “automatic,” and the steps for obtaining an exemption need to be carefully followed, to stay in compliance with subdivision (f).

There is some good news, though! Guidelines on enforcement were not issued until mid December, so The California Department of Public Health and the California Conference of Directors of Environmental Health agreed to a soft-rollout period of 6 months, and agreed to note violations as a warning on inspection reports, educating restaurant operators about the specifics of the new rules during the soft rollout period.

I suppose investing in rubber gloves would be a prudent first step toward compliance?