De Minimis Rule: Definition, FLSA Limits, California Exception
The de minimis rule under the FLSA lets employers disregard insubstantial, irregular periods of work time that cannot practically be recorded, but it does not cover fixed or predictable minutes and California has refused to adopt it for state wage claims.
"De minimis" is Latin legal shorthand for an amount too small to matter, and the phrase turns up in tax law (small fringe benefits that are not taxed), in securities law, and in contract disputes. In wage and hour law it has one specific meaning: the de minimis rule is the doctrine under the Fair Labor Standards Act (FLSA) that lets an employer disregard a few seconds or minutes of work time that occur irregularly and cannot, as a practical matter, be captured for payroll. It is a narrow safety valve for uncertainty, not a license to shave minutes off the clock, and in California it does not apply to state wage claims at all.
What Is the De Minimis Rule?
The rule is codified at 29 CFR 785.47, which says that "insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded." The same regulation adds two limits that employers tend to forget. The rule applies only to "uncertain and indefinite periods of time involving a few seconds or minutes duration," and an employer may not "arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him."
Read those two sentences together and the doctrine becomes much smaller than its reputation. It covers the agent who occasionally spends 40 seconds waiting for a badge reader, or the technician whose shutdown routine sometimes runs a minute long and sometimes not at all. It does not cover the ten minutes every agent spends booting a workstation and loading five applications before clocking in, because that time is regular, predictable, and easy to measure. Federal courts applying the rule have generally weighed three things: how hard the time is to record, how much unpaid time is at stake in total, and whether the work happens regularly. A few seconds of random variance passes. A daily, repeatable task does not.
The regulation itself cites a 1955 case holding that ten minutes a day is not de minimis, which is a useful anchor: if the unrecorded time is measured in minutes per shift and happens every shift, assume it is compensable.
Where the Rule Came From and Why It Is Shrinking
The doctrine traces to a 1946 Supreme Court case, Anderson v. Mt. Clemens Pottery, decided when time was kept by punching a mechanical clock and walking to a workstation could not be timed with any precision. The court said the law does not concern itself with trifles, and the Department of Labor wrote that idea into the 1961 regulation.
The premise has aged badly. Every contact center workstation, every softphone, and every time tracking app records events to the second. When the technology can capture the time, the "cannot as a practical administrative matter be precisely recorded" condition is hard to satisfy. Plaintiffs' lawyers know this, which is why pre-shift boot-up and post-shift shutdown time has become one of the most common wage claims against call centers over the past decade. The de minimis defense rarely survives when the employer's own systems show the same few minutes on every login record.
The California Exception
California's Supreme Court decided the question directly in Troester v. Starbucks (2018). A store supervisor spent four to ten additional minutes after clocking out each closing shift transmitting sales data, activating the alarm, locking the door, and walking employees to their cars. Over 17 months that unrecorded time added up to $102.67 at his $8 hourly wage. The court held that "the relevant California statutes and wage order have not incorporated the de minimis doctrine found in the FLSA," and that state law does "not allow employers to require employees to routinely work for minutes off-the-clock without compensation."
The court's reasoning is the part employers should read twice. It observed that the recordkeeping problems the federal doctrine was built on "may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices," and it was "reluctant to adopt a rule purportedly grounded in the realities of the industrial world when those realities have been materially altered in subsequent decades." The court left open whether some trivially small or irregular activities might still fall outside a claim, but the routine few minutes at the end of every shift are compensable in California.
Federal floor, state ceiling
The FLSA rule is the minimum standard. California has rejected it for state claims, and other states may follow or apply their own tests. Confirm the rule with your state labor agency or the U.S. Department of Labor before relying on it, and remember that state law governs employees who work in that state regardless of where the company is based.
De Minimis Time vs Rounding vs Off-the-Clock Work
These three concepts overlap in practice and are argued together in litigation, but they are legally distinct.
| De minimis time | Time clock rounding | Off-the-clock work | |
|---|---|---|---|
| What it is | Irregular seconds or minutes that cannot practically be recorded | Recording punches to the nearest 5, 6, or 15 minutes | Regular work performed before or after recorded time |
| Federal basis | 29 CFR 785.47 | 29 CFR 785.48 | Compensable under 29 CFR 785.11 (work suffered or permitted) |
| Legal if | Time is uncertain, tiny, and irregular | Rounding is neutral and averages out over time | Never; it must be paid |
| Typical example | Occasional badge-reader delay | 8:03 punch recorded as 8:00, 4:58 recorded as 5:00 | Booting systems before the punch every shift |
Rounding, covered by 29 CFR 785.48, is a separate permission that depends on the practice not resulting "over a period of time, in failure to compensate the employees properly." An employer that rounds always in its own favor cannot rescue the practice by calling the difference de minimis. See the time clock rounding entry for the arithmetic.
The De Minimis Rule in Contact Centers and Remote Teams
Consider a 200-agent inbound center where agents are told to arrive, log in to the desktop, open the CRM, softphone, and knowledge base, and then clock in when ready to take calls. Login logs show the sequence takes a median of 6 minutes. That is 6 minutes × 200 agents × 5 shifts, or 100 unpaid hours a week, roughly 5,200 hours a year. At $18 an hour that is about $93,600 in unpaid straight time, before any overtime it would have triggered, before liquidated damages, and before the fees that a collective action would add. No court is going to call that de minimis. It is regular, it is measurable, and the employer's own systems measured it.
Remote teams have the same exposure in a different form. A remote agent who is expected to be "ready at 8:00" and starts a VPN and three applications at 7:52 every day is working from 7:52. The fix is procedural, not legal: make the timer the first thing that starts, and make the boot-up sequence happen on the clock.
The doctrine still has a legitimate use. If an agent's softphone occasionally drops a call 30 seconds after the scheduled end of shift, and the agent finishes the call before clocking out, that variance is uncertain and tiny. Paying for it is still the safer course, and with per-second time records it costs almost nothing to do so.
How to Track Time So the Rule Is Never Needed
The de minimis defense exists to excuse imprecision. An employer with precise records does not need it. HiveDesk starts the clock from the desktop, mobile, or browser app the moment the employee begins work, so system startup, application loading, and end-of-shift wrap-up happen inside recorded time rather than outside it. Timestamps are captured to the minute and totaled by day and by workweek, which means a supervisor can see whether agents are consistently working a few minutes past schedule and correct the schedule instead of accumulating liability. Optional screenshots show what was being done during those minutes, which settles most disputes about whether the time was work. All of this is included in the single $5/user/month plan with a 14-day free trial.
Record the Minutes Instead of Arguing About Them
HiveDesk timestamps the start and end of every work session automatically, so pre-shift setup and post-shift wrap-up are paid time rather than a lawsuit. $5/user/month, 14-day free trial.
Related Terms
- Hours worked: what the FLSA counts as compensable time in the first place
- Time clock rounding: the neighboring rule for recording punches to the nearest increment
- Wage theft: what unpaid pre- and post-shift work becomes when it is regular
- Back pay: the remedy when unrecorded minutes add up
- Timekeeping: the recordkeeping obligations that make the rule unnecessary
- Working off the clock: a practical guide to the most common violations
Frequently Asked Questions
What does de minimis mean in employment law? It refers to amounts of work time so small and irregular that federal law allows an employer to disregard them for payroll purposes. The regulation limits it to uncertain periods of a few seconds or minutes that cannot practically be recorded.
Is 5 minutes de minimis under the FLSA? Not if it happens regularly. The regulation says an employer may not fail to count any part of an employee's fixed or regular working time, however small. Five minutes of predictable pre-shift setup every day is compensable. Five minutes of occasional, unpredictable variance is where the doctrine has historically applied, and paying for it is still the safer practice.
Is 10 minutes a day de minimis? The regulation itself cites a case holding that ten minutes a day is not de minimis. Assume that daily unrecorded time measured in minutes must be paid.
Does the de minimis rule apply in California? Not to claims under California wage law. The California Supreme Court held in Troester v. Starbucks that the state's statutes and wage orders have not adopted the federal doctrine and do not allow employers to require routine off-the-clock minutes without pay.
Does the de minimis rule cover computer boot-up time? Generally no. Boot-up and login time is regular, happens every shift, and is recorded by the systems themselves, so it fails the "cannot practically be recorded" condition. Several call center cases have treated it as compensable work.
What is the difference between de minimis and rounding? De minimis time is disregarded because it cannot practically be captured. Rounding records captured time to a nearby increment, and it is only lawful if it is neutral over time. Neither doctrine permits systematically excluding regular work time.
Browse more workforce management terms in the glossary.