Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANDRE CORBIN, individually and on No. 13-55622
behalf of other members of the
public similarly situated, D.C. No.
Plaintiff-Appellant, 3:11-cv-01057-
GPC-RBB
v.

TIME WARNER ENTERTAINMENT- OPINION
ADVANCE/NEWHOUSE PARTNERSHIP,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted
September 3, 2015—Pasadena, California

Filed May 2, 2016

Before: Diarmuid F. O’Scannlain, Stephen S. Trott,
and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee
2 CORBIN V. TIME WARNER

SUMMARY*

Employment Compensation

The panel affirmed the district court’s summary judgment
in favor of Time Warner Entertainment-Advance/Newhouse
Partnership (“TWEAN”) in a putative class action brought by
a plaintiff TWEAN employee seeking lost compensation.

In his “rounding” claim, plaintiff alleged that TWEAN’s
compensation policy of rounding all employee time stamps to
the nearest quarter hour deprived him of earned overtime
compensation. In his “logging-in” claim, plaintiff alleged
that he was not compensated for one minute when he
mistakenly opened an auxiliary computer program before
logging into TWEAN’s timekeeping software.

The panel held that TWEAN’s rounding policy
comported with the federal rounding regulation, 29 C.F.R.
§ 785.48(b). The panel further held that TWEAN’s rounding
policy was neutral on its face and as applied to plaintiff. The
panel concluded that the district court properly interpreted
and applied the regulation, and granted summary judgment to
TWEAN.

The panel held that the district court properly granted
summary judgment to TWEAN on plaintiff’s “logging-in”
claim and the district court properly classified the one minute
of uncompensated time as de minimis. The panel held that
the district court properly considered the de minimis doctrine

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CORBIN V. TIME WARNER 3

even though TWEAN did not affirmatively plead it in its
answer. The panel further held that all three factors in
Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984),
supported the district court’s conclusion that plaintiff’s one
minute of uncompensated time was de minimis.

The panel held that plaintiff also failed to demonstrate the
existence of a material fact to his derivative California state
law claims. In addition, the panel held that the district court
did not err by limiting consideration of plaintiff’s rounding
claim to the time period after the implementation of new
online timekeeping system. Finally, because the panel
affirmed the district court’s grant of summary judgment to
TWEAN on plaintiff’s rounding claim, the panel held that
there was no need for the district court to reconsider whether
the claim can form the basis of a viable class action
proceeding.

COUNSEL

William B. Sullivan (argued) and Eric Y. Yaeckel, Sullivan
Law Group LLP, San Diego, California, for Plaintiff-
Appellant.

Joseph W. Ozmer, II (argued), Michael D. Kabat, J. Scott
Carr, and Rachel E. Sankey, Wargo & French LLP, Atlanta,
Georgia, for Defendant-Appellee.
4 CORBIN V. TIME WARNER

OPINION

BYBEE, Circuit Judge:

This case turns on $15.02 and one minute. $15.02
represents the total amount of compensation that Plaintiff
Andre Corbin (“Corbin”) alleges he has lost due to his
employer’s, Defendant Time Warner Entertainment-
Advance/Newhouse Partnership (“TWEAN”), compensation
policy that rounds all employee time stamps to the nearest
quarter-hour. One minute represents the total amount of time
for which Corbin alleges he was not compensated as he once
mistakenly opened an auxiliary computer program before
clocking into TWEAN’s timekeeping software platform.
$15.02 in lost wages and one minute of uncompensated time,
Corbin argued before the district court, entitled him to relief
under the Fair Labor Standards Act of 1938 (“FLSA”),
29 U.S.C. § 201, et seq., and various California state
employment laws.

The district court disagreed and granted summary
judgment to TWEAN. The court determined that because the
company’s rounding policy was neutral on its face and in
practice, TWEAN’s policy complied with the federal
rounding regulation, see 29 C.F.R. § 785.48(b), and Corbin’s
$15.02 in lost wages did not present an issue of material fact.
The court also held that the one minute of uncompensated
time Corbin spent logging into an auxiliary computer
program before logging into TWEAN’s timekeeping software
was de minimis as a matter of law.

We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
 CORBIN V. TIME WARNER 5

I

A. Facts

TWEAN operates a call center in San Diego, California
where its employees field telephone calls from customers.
Until May of 2010, non-exempt employees at the facility
recorded their work hours by swiping their employment
badges through a wall clock mounted at the entrance to the
call center. After May 4, 2010, TWEAN transitioned to an
online timekeeping platform, implementing a recording
system known as Kronos Connect. Kronos Connect directly
links an employee’s time stamps to a program called Avaya,
a “soft-phone system” that must be activated before
employees can begin taking customer phone calls. When an
employee logs into Avaya to begin work, he is automatically
clocked into Kronos. Similarly, when an employee logs out
of Avaya, he is automatically clocked out of Kronos. The
“Avaya/Kronos” system was designed to help prevent off-
the-clock work, blocking employees from answering
customer calls unless they are properly clocked into
TWEAN’s timekeeping software.

TWEAN’s compensation policies incorporate a
“rounding” procedure that relies on the time stamps recorded
by the Avaya/Kronos system. When an employee uses
Avaya/Kronos to clock in for work, to clock in and out for
lunch, and to clock out at the end of the day, the system
rounds each time stamp recorded to the nearest quarter-hour.
For example, an employee who clocks in at 8:07 a.m. to begin
his workday would see his wage statement reflect a clock-in
of 8:00 a.m., rounding his time to the nearest quarter-hour
and crediting him with seven minutes of work time for which
he was not actually on the clock. Similarly, an employee who
6 CORBIN V. TIME WARNER

clocks out at 5:05 p.m. to end her workday would see her
wage statement reflect a clock-out of 5:00 p.m., again
rounding her time to the nearest quarter-hour and deducting
five minutes of work time for which she was actually on the
clock. At the end of each pay period, TWEAN’s non-exempt
employees are paid in accordance with these rounded figures.

Corbin worked for TWEAN at the San Diego call center
from July 20, 2007 to June 15, 2011. Hired to answer
customer calls, Corbin was classified as a “technical support
agent,” a non-exempt position paid on an hourly basis. Like
all of TWEAN’s non-exempt employees, Corbin’s
Avaya/Kronos clock-ins and clock-outs were rounded to the
nearest quarter-hour. Since the implementation of the
Avaya/Kronos timekeeping system in May of 2010, Corbin
worked 269 shifts subject to TWEAN’s rounding policy; he
gained compensation or broke even in 58% of them. In total,
however, the parties agree that as a result of TWEAN’s
rounding policy, Corbin lost $15.02 in aggregate
compensation over the period stretching from May 5, 2010 to
his resignation on June 15, 2011. Additionally, Corbin once
logged onto an auxiliary computer program before logging
into Avaya/Kronos. Swapping this order of operations cost
him one minute of compensable time, as the minute spent
logging into the auxiliary program was not captured by the
Avaya/Kronos timekeeping system.

B. Procedural History

Corbin filed this action in the Superior Court of California
in 2011. TWEAN removed the case to federal court pursuant
 CORBIN V. TIME WARNER 7

to the Class Action Fairness Act. See 28 U.S.C. § 1332(d).1
Corbin then filed an amended complaint, alleging a collective
action pursuant to 29 U.S.C. § 216(b) for violations of the
FLSA, as well as various class actions for violations of
California employment laws.

In 2012, Corbin moved to file a second amended
complaint, seeking to add several new claims, including the
rounding claim at issue in this appeal. That motion was
denied later that year, as was Corbin’s motion to certify a
class of California employees based on the claims alleged in
his first amended complaint. Corbin filed a motion for
reconsideration on the district court’s class certification order
in January of 2013. Two months later, the district court
granted TWEAN’s motion for summary judgment in its
entirety and entered final judgment in favor of TWEAN.2

II

We review the district court’s grant of summary judgment
de novo. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098
(9th Cir. 2015). We “must determine, viewing the evidence
in the light most favorable to the nonmoving party, whether

1
Because Corbin pleaded a claim under the FLSA, a federal law, the
district court also had federal question jurisdiction. See 28 U.S.C. § 1331.
2
Despite its earlier rulings that Corbin had not properly pleaded a claim
premised on TWEAN’s rounding policy, the district court ordered
supplemental briefing on the issue while considering TWEAN’s motion
for summary judgment. In its order granting TWEAN’s summary
judgment motion, the district court explained that after “careful review,”
Corbin’s first amended complaint had adequately pleaded (albeit not
successfully enough to survive summary judgment) a rounding claim.
TWEAN does not challenge the district court’s holding on this point.
8 CORBIN V. TIME WARNER

the district court correctly applied the relevant substantive
law and whether there are any genuine issues of material
fact.” Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.
1999) (en banc). A “genuine issue of material fact exists
when the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Fortune Dynamic, Inc.
v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025,
1031 (9th Cir. 2010) (quoting Caneva v. Sun Cmtys.
Operating Ltd. P’ship (In re Caneva), 550 F.3d 755, 761 (9th
Cir. 2008) (as amended)).

We review a district court’s decision to grant summary
judgment prior to deciding a motion for class certification for
abuse of discretion. Wright v. Schock, 742 F.2d 541, 543–44
(9th Cir. 1984).

III

Corbin’s core claims center on two of TWEAN’s
employment practices. First, Corbin argues that TWEAN’s
rounding policy deprived him of the full amount of his earned
wages, specifically overtime compensation. We will refer to
this as the “rounding claim.” Second, Corbin alleges that
TWEAN permitted employees to load auxiliary computer
programs before clocking into the Kronos/Avaya system, a
practice, he claims, that denied him full compensation for
time spent actually working. We will refer to this as the
“logging-in” claim. Corbin raises the rounding and logging-
in claims as violations under the FLSA, and these violations
also serve as the basis for Corbin’s claims under California
 CORBIN V. TIME WARNER 9

wage laws.3 Additionally, Corbin alleges that the district
court improperly truncated the scope of his claims by
considering only evidence post-dating TWEAN’s transition
to the Avaya/Kronos timekeeping system on May 4, 2010.
Finally, Corbin asserts that the district court erred by
refraining from ruling on his motion for reconsideration of
the court’s earlier order denying Corbin’s motion for class
certification.

We address each contention in turn.

A. Rounding Claim

Corbin argues that TWEAN’s rounding policy violates
29 C.F.R. § 785.48(b), the federal rounding regulation,
because it is not facially neutral or neutral as applied to
Corbin. We reject this argument. However, before
addressing whether TWEAN’s rounding policy meets the
requirements of § 785.48(b), we address Corbin’s threshold
arguments that seek to undermine the validity of the rounding
timekeeping method more broadly.

3
Although it is somewhat difficult to ascertain from his briefing which
California claims Corbin presses on appeal, it appears that Corbin
challenges the district court’s grant of summary judgment as to: California
Labor Code § 510 (failure to pay overtime compensation) and California
Labor Code § 226 (failure to provide an itemized wage statement). We
decline to consider any additional state law claims, as we “will not
ordinarily consider matters on appeal that are not specifically and
distinctly argued in appellant’s opening brief.” Miller v. Fairchild Indus.,
Inc., 797 F.2d 727, 738 (9th Cir. 1986).
10 CORBIN V. TIME WARNER

1. The Federal Rounding Regulation

For more than fifty years, a federal regulation has
endorsed the use of “‘Rounding’ practices.” See Wage and
Hour Division, Department of Labor, 26 Fed. Reg. 190, 195
(January 11, 1961). Codified at 29 C.F.R. § 785.48(b), the
current regulation reads in full:

“Rounding” practices. It has been found that
in some industries, particularly where time
clocks are used, there has been the practice for
many years of recording the employees’
starting time and stopping time to the nearest
5 minutes, or to the nearest one-tenth or
quarter of an hour. Presumably, this
arrangement averages out so that the
employees are fully compensated for all the
time they actually work. For enforcement
purposes this practice of computing working
time will be accepted, provided that it is used
in such a manner that it will not result, over a
period of time, in failure to compensate the
employees properly for all the time they have
actually worked.

This regulation permits “employers to efficiently
calculate hours worked without imposing any burden on
employees,” offering employers a “practical method for
calculating work time” and a “neutral calculation tool for
providing full payment to employees.” See’s Candy Shops,
Inc. v. Superior Court, 210 Cal. App. 4th 889, 903 (2012).
The federal rounding rules have long been applied to federal
claims brought pursuant to the FLSA. See, e.g., Alonzo v.
Maximus, Inc., 832 F. Supp. 2d 1122, 1126 (C.D. Cal. 2011);
 CORBIN V. TIME WARNER 11

Gonzalez v. Farmington Foods, Inc., 296 F. Supp. 2d 912,
932–33 (N.D. Ill. 2003); East v. Bullock’s Inc., 34 F. Supp. 2d
1176, 1184 (D. Ariz. 1998). And, in 2012, in a thorough and
thoughtful treatment, the California Court of Appeal
confirmed that the federal rounding rule also applies to
California state labor claims, so long as a company’s
“rounding-over-time policy is neutral, both facially and as
applied.” See’s Candy, 210 Cal. App. 4th at 903; see also id.
at 900–07.4

We are not aware of any published decision by a court of
appeals addressing the rounding regulation.5 District courts,

4
As noted by the See’s Candy court, the California Supreme Court has
not yet weighed in on the applicability of the federal rounding regulation
to California state wage laws. 210 Cal. App. 4th at 901. However, the
California Division of Labor Standards Enforcement (“DLSE”)—“the
agency empowered to enforce California’s labor laws”—has “adopted the
federal regulation in its manual.” Id. at 902 (citing to DLSE Manual
§§ 47.1, 47.2). Because “there is no convincing evidence that the
[California Supreme Court] would decide differently” than the California
Court of Appeal or the DLSE, we must follow See’s Candy in applying the
federal rounding rule to Corbin’s state wage claims. Vestar Dev. II, LLC
v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001) (quoting Lewis
v. Tel. Emps. Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)). In any
case, Corbin does not challenge the district court’s application of the
federal rounding regulation to California state wage claims.
5
We are aware that in Gillings v. Time Warner Cable LLC, a panel of
our court held, in an unpublished decision, that summary judgment on a
rounding claim was inappropriate because two of the four plaintiffs were
not credited “with work that they had actually performed.” 583 F. App’x
712, 715 (9th Cir. 2014). This suggested, the panel reasoned, that the
defendant’s rounding policy was not neutral in its application because not
every employee gained (or broke even on) compensation over the
employment window at issue. Id. at 716. The panel, however, went on
to affirm summary judgment as to the other two employees’ rounding
claims because “they did not lose any wages due to the policy.” Id.
12 CORBIN V. TIME WARNER

however, have weighed in quite extensively, regularly
upholding the validity of employers’ neutral rounding
practices. For example, in Alonzo, 832 F. Supp. 2d at 1126,
the court found that an employer complies with the federal
regulation if it “applies a consistent rounding policy that, on
average, favors neither overpayment nor underpayment.”
Similarly, in East, 34 F. Supp. 2d at 1184, the court found
that because “[d]uring the same time period in which [the
plaintiff] was ‘underpaid,’” she was “also ‘overpaid,’” the
employer’s “rounding practices average[d] out sufficiently to
comply with § 785.48(b).” The employer’s rounding
practice, the court held, “may not credit employees for all the
time actually worked, but it also credits employees for time
not actually worked.” Id.

Here, Corbin alleges that if an employee loses any
compensation due to the operation of a company’s rounding
policy, that policy should be found to violate the federal

The decision, because it is unpublished, is not binding on this panel.
See Reynolds Metals Co. v. Ellis, 202 F.3d 1246, 1249 (9th Cir. 2000).
We often issue such dispositions in cases that we do not think sufficiently
novel or important to warrant a published opinion. Significantly, our
memorandum dispositions typically do not undertake a careful rendition
of the facts. See generally Alex Kozinski & Stephen Reinhardt, Please
Don’t Cite This! Why We Don’t Allow Citation to Unpublished
Dispositions, CAL. LAWYER, June 2000, at 43, 43 (explaining that a
memorandum disposition “need not state the facts,” and can “often be
accomplished in a few sentences”). Thus, it is conceivable that there are
facts supporting the conclusion we reached in Gillings that are not
included in the disposition. To the extent that Gillings conflicts with this
decision, we disagree with it.
 CORBIN V. TIME WARNER 13

rounding regulation.6 In other words, Corbin argues that
unless every employee gains or breaks even over every pay
period or set of pay periods analyzed, an employer’s rounding
policy violates the federal rounding regulation, a contention
that would serve to wholly invalidate the rounding method as
an acceptable form of timekeeping. The district court was
right to reject such a claim.

First, Corbin’s interpretation reads into the federal
rounding regulation an “individual employee” requirement
that does not exist. The regulation instead explicitly notes
that it applies to “employees” and contemplates wages for the
time “they” actually work. 29 C.F.R. § 785.48(b) (emphasis
added). If the rounding policy was meant to be applied
individually to each employee to ensure that no employee
ever lost a single cent over a pay period, the regulation would
have said as much.

Second, Corbin’s reading of the regulation completely
misunderstands the purpose of a rounding policy. Employers
use rounding policies to calculate wages efficiently;
sometimes, in any given pay period, employees come out
ahead and sometimes they come out behind, but the policy is
meant to average out in the long-term. If an employer’s
rounding practice does not permit both upward and
downward rounding, then the system is not neutral and “will
. . . result, over a period of time, in failure to compensate the
employees properly for all the time they have actually
worked.” Id. Such an arrangement “[p]resumably” does not
“average[] out.” Id.; see also Gonzalez, 296 F. Supp. 2d at

6
As a reminder, the parties agree that Corbin lost $15.02 in
compensable wages after TWEAN implemented the Avaya/Kronos system
in May of 2010.
14 CORBIN V. TIME WARNER

932–33 & n.31 (Employees claimed they were systematically
harmed by defendant’s rounding system because they could
not clock in more than seven minutes prior to a shift and
because management manually edited the employees’ time-
punches; the claim presented a genuine issue of fact for trial).

Corbin’s argument, if accepted, would undercut the
purpose and would gut the effectiveness of a rounding policy.
In fact, Corbin’s preferred interpretation would require
employers to engage in the very mathematical calculations
that the federal rounding regulation serves to avoid. The
California Court of Appeal has previously rejected this
precise contention, explaining that by the terms of Corbin’s
argument, employers could only “lawfully use the rounding
method . . . if they engage[d] in a ‘mini actuarial process at
the time of payroll’ and reconcile[d] the rounding with actual
time punches.” See’s Candy, 210 Cal. App. 4th at 904
(quoting plaintiff’s argument). Put differently, the employers
would have to “un-round” every employee’s time stamps for
every pay period to verify that the rounding policy had
benefitted every employee. If that was the case, why would
any employer ever implement a rounding policy at all? The
proper interpretation of the federal rounding regulation
cannot be one that renders it entirely useless.

We also note that Corbin’s preferred interpretation of the
federal rounding regulation unfairly rewards strategic
pleading, permitting plaintiffs to selectively edit their relevant
employment windows to include only pay periods in which
they may have come out behind while chopping off pay
periods in which they may have come out ahead. For
example, consider a hypothetical employee who came out
behind in January by ten minutes and fifteen dollars, but
came out ahead in February by twelve minutes and eighteen
 CORBIN V. TIME WARNER 15

dollars. Even though, “over [this full] period of time,”
§ 785.48(b), this worker gained two minutes and three
dollars, under Corbin’s theory, the employee could include
only the month of January in his pleading and claim that his
employer’s policy deprived him of full compensation. We do
not believe that the legality of an employer’s rounding policy
turns on the vagaries of clever pleading.

Finally, Corbin argues that because overtime minutes are
compensated at a higher rate than regular-time minutes, the
district court improperly characterized the rounding statute as
neutral. In California, employees are entitled to overtime
compensation at a “rate of no less than one and one-half times
the regular rate of pay for an employee” for time worked
beyond eight hours in a single day or forty hours over a
workweek. Cal. Lab. Code § 510(a). Because of this
variance in compensation rates, Corbin argues, not all
rounded time is created equally and the district court erred by
finding otherwise.7

7
To illustrate Corbin’s argument, consider an employee with a 9:00 a.m.
to 5:00 p.m. workday, compensated at $60 per hour, or $1 per minute.
Should the employee leave work at 4:57 p.m., his time stamp would round
to 5:00 p.m. and he would be credited with three minutes, or $3, of time
he did not actually work. Should the employee leave work at 5:03 p.m.,
his time stamp would again round to 5:00 p.m., and he would lose three
minutes, but rather than losing three minutes of compensable time worth
$3, he would lose three minutes of compensable time worth $4.50 due to
the overtime premium.

Of course, Corbin’s argument depends on his beginning work
precisely at 9:00 a.m. and working a full eight hours of compensable time.
If Corbin arrived at work at 9:03 a.m. (rounded back to 9:00 a.m.), he is,
of course, not entitled to any overtime pay for clocking out at 5:03 p.m.
16 CORBIN V. TIME WARNER

We disagree for three reasons. First, Corbin offers no
case support for the proposition that California’s law is at
odds with the federal rounding regulation and cites to no
precedent that endorses his argument. Second, the only case
to address Corbin’s argument, See’s Candy, explicitly
rejected it. 210 Cal. App. 4th at 905–06. There, the
California Court of Appeal explained that the federal
rounding regulation had long successfully coexisted with
FLSA’s own rule mandating overtime pay after forty hours of
work over the course of a week. Id. at 906. “There is no
analytical difference,” the court pointed out, “between
rounding in the context of daily overtime and rounding in the
context of weekly overtime.” Id. We agree. Over the long
term, TWEAN’s rounding system is neutral, favoring neither
employer nor employee. Third, TWEAN’s rounding policy
allows employees to gain overtime compensation just as
easily as it causes them to lose it. For example, an employee
who clocks in for eight hours and eight minutes of work in a
day, will see those eight minutes rounded up to fifteen
minutes—all of which will be compensated at the overtime
rate.8 Like the California Court of Appeal, we can discern no
reason to analyze overtime minutes any differently than
regular-time minutes, and the district court committed no
error by treating them the same.

8
Indeed, if this hypothetical employee clocked in seven minutes late for
work, he would still be credited with fifteen minutes of overtime—even
though, in fact, he only worked one minute of overtime. In a neutral
rounding system, employees stand to gain as well as lose time. The
rounding rule simply presumes that, over time, it will all even out.
 CORBIN V. TIME WARNER 17

2. TWEAN’s rounding policy is neutral on its face and
as applied to Corbin

TWEAN’s rounding policy passes muster. First,
TWEAN’s policy is facially neutral, as TWEAN rounds all
employee time punches to the nearest quarter-hour without an
eye towards whether the employer or the employee is
benefitting from the rounding. TWEAN’s policy is not the
sort that “systematically undercompensates employees” by
“only rounding down,” See’s Candy, 210 Cal. App. 4th at 902
(internal quotation marks, citations, and alterations omitted);
rather, Corbin can just as easily bank unworked minutes as he
can lose worked minutes. TWEAN’s system is mechanical
and does not depend on managerial oversight—indeed, all
time punches are controlled by the Avaya/Kronos
timekeeping system and are fully walled off from supervisory
editing.

Second, Corbin’s own compensation records demonstrate
that TWEAN’s rounding policy is neutral in application.
Sometimes Corbin gained minutes and compensation, and
sometimes Corbin lost minutes and compensation. In total,
from the time TWEAN implemented the Avaya/Kronos
system to the time he resigned his employment with
TWEAN, Corbin banked three minutes of unworked time and
lost $15.02. Those numbers, however, fluctuated from pay
period to pay period, and given that Corbin consistently
gained time and compensation in the final pay periods
analyzed, a few more pay periods of employment may have
tilted the total time/compensation tally in the other direction
(Corbin, for example, gained both time and compensation in
eight of his last ten pay periods.). TWEAN’s rounding policy
operated exactly as the federal rounding regulation intended,
and Corbin has not shown the existence of a material fact as
18 CORBIN V. TIME WARNER

to whether or not, “over a period of time,” he was not
properly compensated for his work. 29 C.F.R. § 785.48(b).

We join the consensus of district courts that have
analyzed this issue, and find that TWEAN’s rounding policy
comports with the federal rounding regulation. See, e.g.,
Alonzo, 832 F. Supp. 2d at 1126; East, 34 F. Supp. 2d at
1184. Mandating that every employee must gain or break
even over every pay period misreads the text of the federal
rounding regulation and vitiates the purpose and effectiveness
of using rounding as a timekeeping method. The district
court properly interpreted and applied the regulation, and we
affirm the district court’s grant of summary judgment as to
Corbin’s rounding claim.

B. Logging-In Claim

Corbin alleges that TWEAN did not properly compensate
him for the one minute he spent logging into an auxiliary
computer program before clocking into Avaya/Kronos.
Corbin points to one example of an uncompensated “log-in
minute” over the course of his employment at TWEAN: On
March 19, 2011, Corbin logged into an auxiliary program
called “AAD” at 8:28 a.m. and did not log into Avaya/Kronos
until 8:29 a.m., a loss of one minute of compensable time.

TWEAN argues—and the district court determined—that
this single minute amounted to non-recoverable de minimis
time. Corbin challenges this holding on two grounds: First,
Corbin argues that because TWEAN did not plead the de
minimis doctrine as an affirmative defense, it cannot later be
 CORBIN V. TIME WARNER 19

asserted by TWEAN to defeat Corbin’s logging-in claim.9
Second, Corbin claims that even if the de minimis doctrine
could be properly considered, the district court erred in
applying the doctrine to the facts before it. Neither
contention has merit.

If a party seeks to assert an affirmative defense, the party
“must affirmatively state” that defense in a responsive
pleading. Fed. R. Civ. P. 8(c)(1). Rule 8 lists a series of
affirmative defenses—estoppel, laches, res judicata, and
statute of frauds, to name a few—that must be explicitly
asserted in a responsive pleading; the de minimis doctrine is
nowhere to be found on that list. Id.; see also Fed. R. Civ. P.
12(b) (listing additional defenses that must be immediately
raised; also not listing the de minimis doctrine). Corbin
points us to a district court case that offhandedly refers to the
de minimis doctrine as an “affirmative defens[e],” see Farris
v. Cty. of Riverside, 667 F. Supp. 2d 1151, 1154 (C.D. Cal.
2009) (listing the “De Minimis Doctrine” as the “Eighth
Affirmative Defense”), but cannot offer any case that
requires defendants to plead the de minimis doctrine as an
affirmative defense.

Nor can we find any precedent mandating affirmative
pleading ourselves. Rather, the United States Supreme Court
refers to the de minimis doctrine as a “rule” and does not
suggest that it must be affirmatively pleaded by a defendant
before being properly applied by a court. See Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 692, 694 (1946)
(detailing the “application of a de minimis rule” and

9
TWEAN does not contest that it did not plead the de minimis doctrine
as an affirmative defense in its answer to Corbin’s first amended
complaint.
20 CORBIN V. TIME WARNER

remanding to the lower court to give “due consideration to the
de minimis doctrine”) (emphasis added). We have followed
the Supreme Court’s lead, similarly referring to the de
minimis doctrine as a “rule” or “[d]octrine” and not as an
affirmative defense. See Lindow v. United States, 738 F.2d
1057, 1062 (9th Cir. 1984) (referring to the application of the
“de minimis rule”). And the federal regulation codifying the
de minimis doctrine follows suit. The de minimis “rule,” as
the regulation terms it, permits “insubstantial or insignificant
periods of time beyond the scheduled working hours” to be
“disregarded,” but does not require the rule to be
affirmatively pleaded in an initial responsive pleading.
29 C.F.R. § 785.47.

We think these guideposts offer the better characterization
of the de minimis rule. Often evidence that a particular
consequence or fact is de minimis will not be evident from the
face of the complaint, but will only emerge with discovery.
We do not think parties should be prevented from making
arguments they could not have anticipated. Accordingly, we
reject Corbin’s argument and hold that the district court
properly considered the de minimis doctrine even though
TWEAN did not affirmatively plead it in its answer.10

10
Even if TWEAN was required to affirmatively plead the de minimis
doctrine, we have held that “absent prejudice to the plaintiff,” an
“affirmative defense may be plead for the first time in a motion for
summary judgment.” Ledo Fin. Corp. v. Summers, 122 F.3d 825, 827 (9th
Cir. 1997); see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023
(9th Cir. 2010) (same). Here, Corbin noted in a filing from April
2012—five months before TWEAN filed the instant motion for summary
judgment—that he was aware that TWEAN sought to support the
“proposition” that Corbin’s “logging-in” claim could be classified as “de
minimis.” Given this advanced notice, TWEAN’s reliance on the de
minimis doctrine at the summary judgment stage was not an “ambush[]”
 CORBIN V. TIME WARNER 21

Turning to the application of the de minimis doctrine, the
Supreme Court has long held that, “in light of the realities of
the industrial world,” a “few seconds or minutes of work
beyond the scheduled working hours . . . may be
disregarded.” Anderson, 328 U.S. at 692; see also 29 C.F.R.
§ 785.47 (citing to Anderson and explaining that “failure to
count” a “few seconds or minutes” can be justified by
“industrial realities”). “Split-second absurdities” in the
recording of employees’ work time are “not justified by the
actualities of working conditions or by the policy of the Fair
Labor Standards Act.” Anderson, 328 U.S. at 692. Rather, it
is “only when an employee is required to give up a
substantial measure of his time and effort that compensable
working time is involved.” Id. (emphasis added).

Applying Anderson, we have explained that as a “general
rule, employees cannot recover for otherwise compensable
time if it is de minimis,” pointing out that the “de minimis rule
is concerned with the practical administrative difficulty of
recording small amounts of time for payroll purposes.”
Lindow, 738 F.2d at 1062.11

nor did TWEAN gain a “tactical advantage . . . by the late filing.” Ledo,
122 F.3d at 827. Accordingly, TWEAN’s assertion of the de minimis
doctrine in its motion for summary judgment did not prejudice Corbin, and
the district court properly considered it.
11
To the extent we must apply the federal de minimis doctrine to
Corbin’s California state wage claims, we note that the California
Supreme Court has not yet passed on the applicability of the de minimis
doctrine to California wage claims. However, the California Court of
Appeal has applied the federal de minimis standard to a state wage claim,
see Gomez v. Lincare, Inc., 173 Cal. App. 4th 508, 527–28 (2009), and the
California Division of Labor Standards Enforcement (DLSE) has also
adopted the de minimis doctrine, expressly citing to Anderson and Lindow,
see DLSE Manual § 47.2.1 (2010) (available at http://www.dir.ca.gov/
22 CORBIN V. TIME WARNER

To determine if otherwise compensable time is properly
classified as de minimis, in Lindow we established a three-
prong test, instructing courts to “consider (1) the practical
administrative difficulty of recording the additional time;
(2) the aggregate amount of compensable time; and (3) the
regularity of the additional work.” Id. at 1063. In Lindow,
plaintiff employees alleged that they were required to arrive
prior to “the start of their scheduled shifts” in order to review
a shift log book “regarding previous shift activities and plant
conditions,” and to “exchange information and clarify log
entries” with employees departing from an earlier shift. Id.
at 1059. Despite spending, on average, “about 7 to 8 minutes
per day” on these uncompensated tasks over a period of three
years, id. at 1059–60, we nonetheless determined that this
time was de minimis and non-compensable, id. at 1063–64.
We held that because employees “did not always” read the
log book or exchange information before a shift, “the
administrative difficulty of recording the time” and
“monitoring this pre-shift activity” was high. Id. at 1064
(emphasis added). Moreover, we explained, even though the
plaintiffs’ “aggregate claim may be [a] substantial” amount

dlse/dlsemanual/dlse_enfcmanual.pdf). The DLSE language tracks the
federal standard precisely, explaining that the de minimis rule applies
“where there are uncertain and indefinite periods of time involved of a few
seconds or minutes duration, and where the failure to count such time is
due to considerations justified by industrial realities” and “practical
administrative matter[s].” Id. Because “there is no convincing evidence
that the [California Supreme Court] would decide differently” than the
California Court of Appeal or the DLSE, we must follow Gomez in
applying the federal de minimis doctrine to Corbin’s state wage claims.
Vestar Dev. II, 249 F.3d at 960 (quoting Lewis, 87 F.3d at 1545). In any
case, Corbin does not appeal the district court’s application of the federal
de minimis doctrine in deciding state wage claims.
 CORBIN V. TIME WARNER 23

of minutes, the “irregularity” of the work counseled in favor
of finding the time de minimis. Id.

Here, all three factors of the Lindow test support the
district court’s conclusion that Corbin’s one minute of
uncompensated time accumulated by logging into an
auxiliary computer program before logging into the
Avaya/Kronos timekeeping program was de minimis. First,
the practical administrative burden on TWEAN to cross-
reference every employee’s log-in/out patterns is quite high.
To do so, TWEAN would have to double-check four time
stamps (clocking in/out for work; clocking in/out for lunch)
for each employee on each day on the off-chance that an
employee accidentally loaded an auxiliary program like AAD
before loading Avaya/Kronos. Indeed, Corbin’s argument
that TWEAN should have done such an analysis would
require TWEAN to undermine its policy prohibiting off-the-
clock work by proactively searching out and compensating
violations. Moreover, Corbin’s contention that the de
minimis doctrine does not apply because TWEAN could
ascertain the exact log-in/out times by scouring its computer
records is baseless; the de minimis doctrine is designed to
allow employers to forego just such an arduous task.

Second, the amount of compensable time at issue here is
only one minute. Though there is “no precise amount of
time” that courts have labeled de minimis per se, “[m]ost
courts have found daily periods of approximately 10 minutes
de minimis even though otherwise compensable.” Id. at 1062.
The claim at issue here is far less than the claim classified as
de minimis in Lindow (Corbin’s total of one minute of
uncompensated time over multiple years of employment is
roughly an eighth of each employee’s claim of
uncompensated time for a single day in Lindow), and
24 CORBIN V. TIME WARNER

represents a minuscule amount of time when considered over
Corbin’s multi-year employment tenure. Accordingly, we
find that this factor weighs heavily in TWEAN’s favor.

Finally, the uncompensated time at issue here is not
“regular” at all—it was the result of Corbin’s violation of a
company policy mandating that all work activities be on the
clock. Indeed, the scarcity of examples to which Corbin can
refer indicates that this practice does not occur with
“regularity.” Corbin explained in his deposition that he knew
TWEAN prohibited off-the-clock work and that his standard
practice was to log into Avaya/Kronos before booting up any
auxiliary programs. And an analysis of Corbin’s computer
log-in records confirms that aside from the instance outlined
above, Corbin faithfully complied with that standard practice
over the course of his employment: The vast majority of time,
Corbin followed TWEAN’s employment policy and logged
into Avaya/Kronos before logging into any other programs or
beginning any other work.

Because the Lindow factors uniformly lean in favor of
TWEAN, the district court properly classified the one minute
of uncompensated time as de minimis and appropriately
granted summary judgment to TWEAN on Corbin’s
“logging-in” claim.

C. Limiting Corbin’s Claims to the Post-May 4, 2010 Period

Corbin alleges that the district court improperly truncated
the relevant employment window by granting summary
judgment on all claims pertaining to hours worked before
May 4, 2010—the date TWEAN transitioned from a wall-
clock timekeeping system to the Avaya/Kronos online
timekeeping system. This artificial reduction in the relevant
 CORBIN V. TIME WARNER 25

employment period, he argues, allowed “hundreds of dollars
in damages” to go unconsidered. Specifically, Corbin alleges
that he was not given a full and fair opportunity to address the
impact of the change of timekeeping methods on his rounding
claim,12 arguing that TWEAN never raised this issue and that
the district court shortened his claim sua sponte. TWEAN
responds that it did raise the pre-May 4, 2010 issue and that
Corbin had an opportunity to respond. Additionally,
TWEAN notes that given the difference in timekeeping
methods, Corbin’s rounding claim could not be accurately
adjudicated under the wall-clock system.

TWEAN has the better of the argument. First, Corbin’s
operative complaint only discusses the Avaya/Kronos system;
he never addresses how a combination of TWEAN’s wall-
clock timekeeping system and its rounding policy deprived
him of wages.

Moreover, Corbin had multiple opportunities to explain
to the district court how and why his rounding claim should
apply to the pre-May 4, 2010 timekeeping system, but never
did so. As a “general rule, a district court may not sua sponte
grant summary judgment on a claim without giving the losing
party . . . an opportunity to present new evidence,” United
States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989), and a
“full and fair opportunity to ventilate the issues involved in
the motion,” Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312
(9th Cir. 1982). Here, the district court did just that,
explaining to the parties at a hearing on TWEAN’s motion for
summary judgment held more than a month before it issued

12
Corbin recognizes that his logging-in claim has no applicability prior
to May 4, 2010, as it was necessarily dependent on the existence of the
Avaya/Kronos timekeeping system.
26 CORBIN V. TIME WARNER

its ruling that it was “prepared to grant summary judgment as
to any claims to recover for allegations prior to May 4 of
2010, which is the time frame that the employer went from
the Kronos card-swipe system to the Kronos/Avaya phone
system for clocking in.” Corbin, despite being afforded the
opportunity to respond, did not object to the pre-May 4 cut-
off in his supplemental briefing on the very rounding claim at
issue here. In light of the district court’s pointed statements
and requests, Corbin should have been well aware that he had
an opportunity to respond to the truncating of the claims
period. He made no such response.

Additionally, there is no genuine issue of material fact as
to the applicability of Corbin’s rounding claim to TWEAN’s
pre-May 4, 2010 timekeeping system. Corbin explained in
his deposition that after clocking in at the wall-clock, he had
a “five-minute grace period . . . to get to [his] desk and start
up for the day.” As Corbin’s rounding claim turned on a very
precise calculation of whether each individual employment
minute was clocked in, rounded, and/or actually spent
working, a nebulous daily five-minute period where Corbin
perhaps went right to his desk to begin working or perhaps
spent the time socializing would be impossible to analyze,
especially after multiple years have passed. See Alonzo,
832 F. Supp. 2d at 1128–29 (refusing to sustain a rounding
claim when time records show only that plaintiffs “may have
been present on Defendant’s premises but not engaged in
work activities”); see also See’s Candy, 210 Cal. App. 4th at
907–08 (same).

The district court did not err in granting summary
judgment as to Corbin’s pre-May 4, 2010 rounding claims.
 CORBIN V. TIME WARNER 27

D. California State Claims

To the extent that Corbin properly raised challenges on
appeal to the district court’s grant of summary judgment to
TWEAN on his state law claims, see supra n.3, those
challenges are denied.

California Labor Code § 510(a) explains that “[a]ny work
in excess of eight hours in one workday and any work in
excess of 40 hours in any one workweek . . . shall be
compensated at the rate of no less than one and one-half times
the regular rate of pay for an employee.” Cal. Lab. Code
§ 510(a). This claim is derivative of the rounding claim
analyzed above, and for the same reasons, we find no triable
issue of material fact. See supra pp. 15–18; see also See’s
Candy, 210 Cal. App. 4th at 906.

California Labor Code § 226 guarantees each employee
an “accurate itemized statement in writing showing (1) gross
wages earned, [and] (2) total hours worked by the employee.”
Cal. Lab. Code § 226(a). Corbin argues that because
TWEAN rounded his time stamps and did not compensate
one minute of off-the-clock time spent booting up auxiliary
computer programs, his wage statements did not accurately
set forth his wages and hours worked. Because we uphold the
validity of TWEAN’s rounding policy and have found the
one cited instance of off-the-clock work to be de minimis,
Corbin’s § 226 claim fails. The district court properly
granted summary judgment on this claim.
28 CORBIN V. TIME WARNER

E. Motion for Reconsideration of Order Denying Class
Certification

Finally, Corbin requests that we remand his rounding
claim to the district court for a class certification inquiry.
Because we hold that the district court properly granted
summary judgment to TWEAN as to Corbin’s individual
rounding claim, there is no need to remand this case to the
district court for further proceedings.

The procedural history of this case is convoluted and
warrants some discussion. On June 10, 2011, Corbin filed his
first amended complaint in district court. This complaint did
not explicitly plead a rounding claim. On May 18, 2012,
Corbin moved to file a second amended complaint, seeking
to add several new claims including the rounding claim at
issue here. Three days later, on May 21, 2012, Corbin filed
a motion seeking to certify a class of California-based
employees as to both the rounding claim and the “logging-in”
claim.13 Corbin’s motion to file a second amended complaint
was denied on October 9, 2012, and on December 18, 2012,
the district court denied Corbin’s motion for class
certification. The court explicitly addressed and denied class
certification for the “logging-in” claim, but determined that
as the rounding claim was not pleaded on the face of Corbin’s
first amended complaint—still the operative complaint in the
case—it would not consider the rounding claim’s viability for
class certification.

13
See Plaintiff’s Memo. of Points & Authorities in Support of Plaintiffs’
Mot. for Class Cert. at 55-1, p.1, Waine-Golston v. Time Warner (No. 11-
cv-01057) (May 21, 2012). Corbin also sought class certification as to
additional claims not at issue in this appeal. Id.
 CORBIN V. TIME WARNER 29

On January 2, 2013, Corbin filed a motion seeking
reconsideration of the district court’s order denying class
certification. Corbin (somewhat confusingly) argued that a
rounding claim was implied in his first amended complaint all
along, and that his later effort to affirmatively plead the
rounding claim via an amended complaint was nothing more
than a “professional courtesy” to TWEAN.14 As such, Corbin
argued, his rounding claim was properly pleaded and
warranted consideration for class certification.

In its order granting TWEAN’s summary judgment
motion, the district court explained that “[a]fter a careful
review of the first amended complaint,” Corbin had properly
alleged that “Defendant failed to pay employees for overtime
compensation based on Defendant’s rounding policy.” The
district court considered the rounding claim on its merits,
proceeded to grant summary judgment for TWEAN, and
entered final judgment in favor of TWEAN.

Whatever the answer to Corbin’s pleaded-or-not-pleaded
argument, the district court’s summary judgment ruling on
the merits of Corbin’s individual rounding claim fully moots
the need for any further steps to be taken below. As
explained above, see supra pp. 17–18, the district court
properly granted summary judgment on Corbin’s rounding
claim. That rounding claim formed the basis of Corbin’s
motion for reconsideration—Corbin wanted the district court
to certify the rounding claim as a class action. If the rounding
claim is without merit as applied to Corbin, it follows that the
district court need not inquire as to whether that meritless

14
See Plaintiff’s Mot. for Reconsideration of the Court’s Order Denying
Class Cert. at 92-3, p. 2, Waine-Golston v. Time Warner (No. 11-cv-
01057) (Jan. 2, 2013).
30 CORBIN V. TIME WARNER

claim should form the basis of a class action. See, e.g.,
Wright, 742 F.2d at 545–46 (affirming a district court’s
decision to decline to rule on a class certification motion after
granting summary judgment to defendants “where
considerations of fairness and economy [so] dictate”); Boyle
v. Madigan, 492 F.2d 1180, 1181–82 (9th Cir. 1974) (finding
dismissal of action before ruling on class certification was
“the proper course to follow” because the “named plaintiffs
[had] failed to state a claim in themselves for the relief they
seek”); see also J&R Marketing, SEP v. Gen. Motors Corp.,
549 F.3d 384, 390 (6th Cir. 2008) (explaining that “[i]f it is
found, prior to class certification, that the named plaintiffs’
individual claims are without merit, then dismissal is
proper”). In other words, the district court has no need to
entertain Corbin’s attempt to certify a class without a claim.
Accordingly, Corbin’s request for reconsideration of his class
certification motion is moot, and there is no further action for
the district court to take.

IV

Corbin has failed to demonstrate the existence of a
material fact as to his rounding claim, his logging-in claim, or
his derivative state claims. Additionally, the district court did
not err by limiting consideration of Corbin’s rounding claim
to the time period after the implementation of the
Avaya/Kronos timekeeping system. Finally, because we
affirm the district court’s grant of summary judgment to
TWEAN on Corbin’s rounding claim, there is no need for the
district court to consider whether that claim can form the
basis of a viable class action proceeding.

AFFIRMED.