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<img class="alignright size-medium wp-image-5198" src="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2017/10/timerunning-300x212.jpg" alt="" width="300" height="212" />In many cases, particularly in light of last year’s decision in Tyson Foods, Inc. v. Bouaphakeo, it is the plaintiff who tries to use statistical evidence in an off-the-clock case to estimate damages (we blogged the Tyson Foods decision <a href="https://www.employmentclassactionreport.com/flsa/tyson-foods-inc-v-bouaphakeo-the-supreme-court-produces-a-narrow-holding-involving-flsa-precedent-and-rule-23-principles/">here</a>. But that same data may not only be used by the employer but also can actually defeat a case altogether, as a recent decision from the Northern District of California illustrates.

In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2017/10/10-23-2017-Order.pdf">Rodriguez v. Nike Retail Services, Inc., Case No. 14-cv-01508-BLF (N.D. Cal. Sept. 12, 2017)</a>, the plaintiffs were hourly employees working at California Nike retail shoe stores. At the end of each working day, they were required to go through bag checks intended to reduce internal theft. These searches were generally conducted after the employees punched out as they exited the store. The plaintiffs brought suit on the basis that they were not paid for the time spent either waiting for the searches or having their bags searched.

Under federal law, this time was almost certainly not compensable because it was not integral to the employees’ work. See Integrity Staffing Solutions, Inc. v. Busk (we blogged that decision <a href="https://www.employmentclassactionreport.com/flsa/unanimous-supreme-court-finds-security-screening-time-not-compensable/">here</a>. The plaintiffs instead asserted state law claims under California law, which counts as working time any time the employee is “subject to the control of the employer.” The district court certified the case in 2016 and specifically noted that under Tyson Foods, the plaintiffs could try to prove the amount of time spent in the post-shift searches through representative statistical evidence. So, good for the employees.

But it turns out that evidence reflected that the time actually spent in the searches was minimal, prompting the employer to move for summary judgment as to the entire class. The court found that while the issue of whether the time was de minimis (and therefore not compensable) depended on several factors, the consensus appeared to be that time of less than 10 minutes per day was de minimis. In that light, the employer submitted a statistical study that reflected that the average time spent in the inspections was a mere 18.5 seconds. In opposition, the plaintiffs submitted their own expert report, which criticized the employer’s expert’s approach but did not state a figure itself, and anecdotal testimony that searches could take up to 10 minutes. The court found that this created no question of fact but meant only that it was undisputed that inspections took somewhere between “zero seconds and several minutes.” In addition to this issue, the court noted the practical difficulties and potential privacy concerns of putting employee time clocks at the front of the store, and it found that Nike satisfied its burden of proving that it would be administratively difficult to administer timekeeping for such short intervals. It noted that some searches did take longer than a minute, but those instances were irregular and often due to extenuating circumstances. Ultimately, it concluded that the time spent was indeed de minimis and that the employer was entitled to summary judgment in its favor.

Time studies can be expensive, but in this instance what was likely viewed as a tool for the employees turned out to be the death knell for their claims.

The bottom line: Employers can use time studies to show that a claimed off-the-clock claim is de minimis.

Time Study Kills Off-the-Clock Claim