Provine v. Office Depot, Inc.

Filing 52

ORDER DIRECTING FURTHER BRIEFING REGARDING DE MINIMIS DEFENSE (Illston, Susan) (Filed on 4/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 11-903 SI

HOWARD DAVID PROVINE, etc.,

ORDER DIRECTING FURTHER
BRIEFING REGARDING DE MINIMIS
DEFENSE

Plaintiffs,
v.
OFFICE DEPOT INC.,
Defendant.

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Citing 29 C.F.R. § 548.3(e), defendant asserts that even if Bravo Awards are non-discretionary,

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the awards were nevertheless properly excluded from plaintiff’s regular rate of pay because the total

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amount at issue is less than fifty cents. Plaintiff contends that 29 C.F.R. § 548.3(e) is inapplicable to

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plaintiff’s claims because, inter alia, that regulation only applies to piece rate workers. 29 C.F.R.

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§ 548.1 states that Section 548.3 only applies to the calculation of overtime pay “in accordance with

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Section 7(g)(3) of the Fair Labor Standards Act.” Section 7(g) of the FLSA is titled “Employment at

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Piece Rates.” 29 U.S.C. § 207(g)(3).

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Accordingly, contrary to the arguments in defendant’s reply, it appears from the plain language

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of the statute and the regulations that 29 C.F.R. § 548.3(e) is inapplicable to this case. The Court finds

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that further briefing on the de minimis defense would be of assistance in resolving defendant’s motion

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for summary judgment. The Court directs defendant to file a supplemental brief of no more than 5 pages

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by May 2, 2012, and plaintiff may file a supplemental response of no more than 5 pages by May 9,

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2012. The Court will take the matter under submission at that time.

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IT IS SO ORDERED.

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Dated: April 25, 2012

SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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