Giles Gibson

In “off-the-clock work” wage and overtime cases, employers often assert a “de minimus” defense, suggesting they’re allowed to not pay for small amounts of work time.

Not so. The de minimus exception does not apply -- no matter how little time is involved – to time spent doing regular, recurring work tasks -- particularly where it wouldn’t be difficult to record the time.

We are still investigating call center “off-the-clock work” practices at Enterprise Rent A Car. Each confidential interview teaches us more, and supports the pending class action suit.

If you are a current or former Enterprise call center employee and are willing to talk with us on a confidential basis, please click here.

In a recent labor arbitration, we won reinstatement and backpay for an unfairly fired union member. The employer then reduced her backpay by the amount of the Oregon unemployment benefits she'd received, forcing us to take the dispute back to the Arbitrator.

In arguing the reduction was proper, the employer emphasized that rather than paying taxes to cover its employees, it has chosen to participate in the unemployment insurance program by reimbursing the state "dollar-for-dollar" for all benefits paid to them, a choice that Oregon law allows to government and non-profit employers.

The Arbitrator rejected the employer's claim and instead ordered it to pay the $11,000 in additional, wrongly withheld backpay. The Arbitrator reasoned in part that -- as we had argued -- Oregon, unlike some other states, does not require that unemployment benefits paid to a discharged worker be refunded to the state if the worker later wins reinstatement and backpay.

The Arbitrator's ruling confirms our view: that Oregon unemployment is never a proper offset to backpay . . . regardless of how an employer participates in the program.