Abigail Britton


Since the passage of the Fair Labor Standards Act (“FLSA”) in 1938, courts have grappled with how to interpret which activities an employee performs for their employer should be considered “work.” The FLSA requires employers pay a minimum wage, pay overtime, and keep records of their employees’ time. However, to calculate these wages based on hours worked, the employer must know what constitutes “work.” Over the 80 years since its enactment, federal courts have adopted rules to determine what counts as work. One doctrine courts apply is the de minimis doctrine. Under the de minimis doctrine, employers do not need to compensate their employees for insignificant and insubstantial amounts of time. Federal courts have determined that some small amounts of work are too trivial for the employer to be required to track. Over time, the de minimis doctrine not only prevented employee plaintiffs from prevailing in claims brought under the FLSA but also permeated state wage and hour laws. Individual states are allowed to establish and regulate their own wage and hour laws in addition to the FLSA. Some states have adopted the de minimis doctrine and applied it to their own labor code. Other states have explicitly rejected the de minimis doctrine as applied to their respective state wage and hour laws. This Comment explores the reasoning behind these states’ decisions and implores other states to consider following suit. The de minimis doctrine is inconsistent with the purpose of wage and hour laws and is no longer relevant due to current advances in technology. This Comment also explores the recent changes in the American workplace due to COVID-19 and how they demonstrate that the de minimis doctrine is no longer consistent with the current marketplace.



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