                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 ISAAC RODRIGUEZ, as an individual                 No. 17-16866
 and on behalf of all others similarly
 situated,                                           D.C. No.
                  Plaintiff - Appellant,          5:14-cv-01508-
                                                       BLF
                      v.

 NIKE RETAIL SERVICES, INC.,                          OPINION
               Defendant - Appellee.



        Appeal from the United States District Court
            for the Northern District of California
       Beth Labson Freeman, District Judge, Presiding

             Argued and Submitted June 14, 2019
                  San Francisco, California

                       Filed June 28, 2019

    Before: MARY M. SCHROEDER and MILAN D.
    SMITH, JR., Circuit Judges, and JED S. RAKOFF, *
                     District Judge.

                Opinion by Judge Jed S. Rakoff

    *
      The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2             RODRIGUEZ V. NIKE RETAIL SERVS.

                          SUMMARY **


                 Federal De Minimis Doctrine

    The panel reversed the district court’s summary
judgment in favor of Nike Retail Services, Inc., and held that
after Troester v. Starbucks Corp., 421 P.3d 1114 (Cal. 2018),
the federal de minimis doctrine – which precludes recovery
for otherwise compensable amounts of time that are small,
irregular, or administratively difficult to record – does not
apply to wage and hour claims brought under the California
Labor Code.

   The panel held that the district court’s grant of summary
judgment cannot be affirmed on the record below. The panel
remanded for further proceedings consistent with Troester.


                            COUNSEL

Max W. Gavron (argued), Nicholas Rosenthal, and Larry W.
Lee, Diversity Law Group APC, Los Angeles, California;
William L. Marder, Polaris Law Group LLP, Hollister,
California; Dennis S. Hyun, Hyun Legal APC, Los Angeles,
California; for Plaintiff-Appellant.

Jon D. Meer (argued) and Michael Afar, Seyfarth Shaw LLP,
Los Angeles, California, for Defendant-Appellee.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            RODRIGUEZ V. NIKE RETAIL SERVS.                 3

                         OPINION

RAKOFF, District Judge:

    Defendant Nike Retail Services, Inc. (“Nike”) requires
its retail employees to undergo “off the clock” exit
inspections every time they leave the store. Seeking
compensation for the time spent on these exit inspections,
plaintiff Isaac Rodriguez brought a class action on behalf of
himself and similarly situated Nike employees. The District
Court granted summary judgment for Nike, holding the
Rodriguez’s claims were barred by the federal de minimis
doctrine, which precludes recovery for otherwise
compensable amounts of time that are small, irregular, or
administratively difficult to record. The California Supreme
Court subsequently held in Troester v. Starbucks Corp.,
421 P.3d 1114 (Cal. 2018), that the federal de minimis
doctrine does not apply to wage and hour claims brought
under California law. Accordingly, we reverse and remand
to the District Court for further proceedings consistent with
Troester.

       FACTUAL AND PROCEDURAL HISTORY

A. The District Court’s Order Granting Summary Judgment
   for Nike

    Nike has 34 retail stores in California. At these stores,
employees (other than those exempt from applicable wage
and hour laws) are required to track their hours by
“punching” in and out on a time clock. Separately, these
employees are required to submit to exit inspections each
time they leave the store on a break or at the end of the day.
These inspections can be longer or shorter depending, for
example, on whether an employee needs to wait at the exit
for someone to check them, whether the employee is
4           RODRIGUEZ V. NIKE RETAIL SERVS.

carrying a box or bag that must be inspected, or the like.
Regardless of how long the inspections take, however, they
occur after the employee has punched out, such that exit
inspections are “off the clock” and are thus uncompensated.

    Plaintiff Isaac Rodriguez worked at Nike’s Gilroy,
California retail store from November 2011 to January 2012.
On February 25, 2014, Rodriguez filed a class-action
complaint in Santa Clara County Superior Court, and on
April 1, 2014, Nike removed the case to the District Court.
On December 8, 2014, Rodriguez filed his First Amended
Class Action Complaint, which brings claims under:
(1) California Labor Code §§ 1194 and 1197 (failure to pay
minimum wages); (2) California Labor Code §§ 510 and
1194 (failure to pay overtime wages); and (3) California
Business and Professions Code § 17200 et seq. (unfair
business practices). On August 19, 2016, the District Court
certified a class of “[a]ll current and former non-exempt
retail store employees of [Nike] who worked in California
during the period from February 25, 2010 to the present.”

    On January 31, 2017, Nike moved for summary
judgment against the certified class. Nike argued that
Rodriguez’s claims were barred by the federal de minimis
doctrine, which precludes recovery for otherwise
compensable amounts of time that are small, irregular, or
administratively difficult to record. See Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 692 (1946); Lindow v.
United States, 738 F.2d 1057, 1062–63 (9th Cir. 1984). In
support of its motion, Nike put forth expert testimony from
Robert Crandall, who, in response to this lawsuit, conducted
a “time and motion study” to measure the length of exit
inspections at Nike’s California stores. Crandall randomly
selected 15 of Nike’s California retail locations and
conducted video and in-person observations over a 30-day
            RODRIGUEZ V. NIKE RETAIL SERVS.                5

period. Based on his study, Crandall concluded that the
average exit inspection took between 16.9 and 20.2 seconds,
and that the median inspection took 4.7 seconds. Crandall
also concluded that 21.5% of inspections took no measurable
time, 92.2% took less than a minute, and 97.5% took less
than two minutes.

    In his opposition to Nike’s motion, Rodriguez put forth
testimony from his own expert, Brian Kriegler, who
analyzed Crandall’s study. Based on Kriegler’s testimony,
Rodriguez argued that Crandall’s study was flawed in
several respects, including that it: (1) covered too brief a
sample to be extrapolated to the class period; (2) relied on
“judgment calls” about what was happening in video
observations; (3) artificially decreased inspection times by
assuming that subjects who were interacting with others
were not also waiting to be inspected; and (4) contained
disparities between video and in-person observations.
Rodriguez also put forth deposition testimony from Nike
store managers who said that exit inspections regularly took
several minutes.

    Furthermore, Rodriguez noted that the question of
whether the federal de minimis doctrine applied to California
Labor Code claims was then pending before the California
Supreme Court. See Troester v. Starbucks Corp., 680
F. App’x 511, 512 (9th Cir. 2016) (certifying the question).
Even if the doctrine applied, Rodriguez argued, Nike failed
to carry its burden because it did not show that the amounts
of time at issue were small, irregular, or administratively
difficult to record.

   On September 12, 2017, the District Court granted
Nike’s motion and dismissed the case. See Rodriguez v. Nike
Retail Servs., Inc., No. 14-cv-01508-BLF, 2017 WL
4005591, at *1 (N.D. Cal. Sept. 12, 2017). The court began
6           RODRIGUEZ V. NIKE RETAIL SERVS.

by addressing whether the de minimis doctrine applied to
Rodriguez’s claims and by explaining that “Nike’s motion
for summary judgment hinges on this question.” Id. at *6.
Although the court acknowledged that the question was
pending before the California Supreme Court in Troester, it
stated that it “must operate in the present legal landscape and
apply the law as it currently exists.” Id. at *7. Under current
precedent, the court held, “the de minimis doctrine is a valid
defense to wage claims brought under the California Labor
Code.” Id. The court then applied the factors set forth in
Lindow v. United States, which courts in our circuit consider
when evaluating whether amounts of time are de minimis:
“(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.” 738 F.2d
at 1063.

    Before applying the Lindow factors, the District Court
summarized the evidence before it. The court stated that it
would not consider Kriegler’s testimony insofar as it
attacked the accuracy of Crandall’s study because these
attacks did “not supply evidence addressing any of the de
minimis factors.” Rodriguez, 2017 WL 4005591, at *8.
Although such attacks “may be appropriate on a motion to
strike expert testimony,” the court reasoned, “it is not
evidence that creates a factual dispute for purposes of
summary judgment.” Id. Moreover, the court held, to the
extent that Rodriguez intended for his motion to be
construed as a motion to strike, the motion was denied, as
Kriegler’s testimony failed to show that Crandall’s study
was so unreliable as to be inadmissible. Id. at *9. The court
did, however, consider the depositions of Nike store
managers who testified that exit inspections regularly took
several minutes. On this basis, the court concluded that,
“viewing the evidence in the light most favorable to”
             RODRIGUEZ V. NIKE RETAIL SERVS.                   7

Rodriguez, “it is undisputed that an exit inspection takes
between zero seconds and several minutes.” Id. at *12.

    Even assuming that exit inspections took several
minutes, however, the court held that this time was de
minimis under Lindow. The court began by noting that “[a]n
important factor in determining whether a claim is de
minimis is the amount of daily time spent on the additional
work,” and that “courts have regularly held that daily periods
of up to 10 minutes are de minimis.” Id. at *11 (alteration in
original) (quoting Lindow, 738 F.2d at 1062). The court then
turned to the first Lindow factor—the administrative
difficulty involved in recording exit-inspection time—and
held that Rodriguez had failed to create a triable issue by
arguing that Nike should install time clocks at store exits,
rather than at the back of the store. Id. at *13–14. Not only
did Nike offer business reasons for having clocks at the back
of the store, the court explained, but Rodriguez’s proposal
would also require some employees to spend more time
clocking back in and out at store exits than they spent
undergoing inspections. Id. at *14. This conclusion was
unaltered, the court held, by the fact that other major retailers
placed time clocks at the front of their stores to compensate
employees for security checks. Id. at *13. The court also
acknowledged, but did not address, Rodriguez’s further
proposals that Nike perform inspections at the back of the
store before employees clock out, or that Nike add a fixed
amount of time to each employee’s paycheck to account for
inspection time. Id.

    Moving to the aggregate amount of compensable time,
the court repeated the point that daily periods of 10 minutes
or less are generally considered de minimis. Id. at *15. Even
if each exit inspection took several minutes, the court
reasoned, it would take multiple exits to meet the 10-minute
8            RODRIGUEZ V. NIKE RETAIL SERVS.

threshold. Moreover, the court explained, “the Lindow court
made clear that even when an aggregate claim is substantial,
a claim may still be considered de minimis ‘because of the
administrative difficulty of recording the time and the
irregularity of the additional [] work.’” Id. at *16 (alteration
in original) (quoting Lindow, 738 F.2d at 1064).

    Finally, with respect to regularity, the court held that
Crandall’s study “demonstrates that compensable exit times
lasting at least 60 seconds did not occur regularly.” Id. The
60-second threshold was important, the court concluded,
because Nike’s systems measured time to the whole minute,
and a 60-second inspection would thus have a measurable
effect on wages. Although, as noted, Rodriguez had put forth
testimony from Nike store managers that exit inspections
could take several minutes, the court held that there was no
evidence that such inspections occurred regularly. Id. at *17.
Accordingly, the court concluded that each of the Lindow
factors favored Nike and that no reasonable jury could find
that exit inspections were compensable.

B. The California Supreme Court’s Decision in Troester

   Rodriguez filed his notice of appeal on September 14,
2017, and on April 20, 2018, we stayed appellate
proceedings pending the California Supreme Court’s
decision in Troester. On July 26, 2018, the California
Supreme Court issued its decision. Troester v. Starbucks
Corp., 421 P.3d 1114 (Cal. 2018), as modified on denial of
reh’g (Aug. 29, 2018).

    Troester involved a challenge to Starbucks’s practice of
requiring employees to perform store-closing tasks after
clocking out. Id. at 1116–17. The undisputed evidence
before the District Court showed that these tasks took 4 to
10 minutes per day. Troester v. Starbucks Corp., No. CV 12-
            RODRIGUEZ V. NIKE RETAIL SERVS.                  9

7677 GAF (PJWx), 2014 WL 1004098, at *4 (C.D. Cal.
Mar. 7, 2014). Because these amounts were less than the
10-minute threshold discussed above, and because it was not
administratively feasible for employees to clock out after
performing store-closing tasks, the District Court granted
summary judgment for Starbucks based on its de minimis
defense. Id. at *4–5. The court held that summary judgment
was appropriate even though employees performed store-
closing tasks on a daily basis, such that the third Lindow
factor, regularity, weighed in the employees’ favor. Id. at *5.

    On appeal, we certified the following question to the
California Supreme Court: “Does the federal Fair Labor
Standards Act’s de minimis doctrine, as stated in Anderson
v. Mt. Clemens Pottery Co. and Lindow v. United States,
apply to claims for unpaid wages under the California Labor
Code sections 510, 1194, and 1197?” Troester, 680 F. App’x
at 512 (citations omitted). The panel explained that “[t]he
federal de minimis rule could be seen as less employee-
protective than California’s wage and hour laws and,
therefore, at odds with those laws.” Id. at 515. By answering
the question, the panel stated, the California Supreme Court
could “either dispose of the appeal or determine how the case
might proceed were we to remand this putative class action
to the district court.” Id.

    The California Supreme Court accepted certification,
and it held that the federal de minimis doctrine does not apply
to California’s wage and hour statutes or regulations.
Troester, 421 P.3d at 1116. The court began by observing
that California labor laws are generally more protective than
federal labor laws, and it reasoned that “[t]he federal rule
permitting employers under some circumstances to require
employees to work as much as 10 minutes a day without
compensation is less protective than a rule that an employee
10           RODRIGUEZ V. NIKE RETAIL SERVS.

must be paid for ‘all hours worked’ or ‘[a]ny work’ beyond
eight hours a day.” Id. at 1120 (second alteration in original)
(citations omitted) (first quoting Cal. Code Regs. tit. 8,
§ 11050(3)(A)–(B); then quoting Cal. Lab. Code § 510(a)).
The court concluded, moreover, that “[n]othing in the
language of the wage orders or Labor Code shows an intent
to incorporate the federal de minimis rule articulated in
Anderson, Lindow, or the federal regulation” codifying the
de minimis doctrine. Id.

     Although the court held that the federal de minimis
doctrine did not apply to wage and hour claims, it left open
“whether a [California] de minimis principle may ever
apply.” Id. at 1121; see id. at 1116 (“We do not decide
whether there are circumstances where compensable time is
so minute or irregular that it is unreasonable to expect the
time to be recorded.”). At least on the facts of the case before
it, the court held, Starbucks’s de minimis defense failed. Id.
at 1125. In so holding, the court explained that “[a]n
employer that requires its employees to work minutes off the
clock on a regular basis or as a regular feature of the job may
not evade the obligation to compensate the employee for that
time by invoking the de minimis doctrine.” Id. (emphasis
added). Nor was a different conclusion compelled by the
administrative difficulties involved in recording the
additional time. Id. To the contrary, the court stated that
“employers are in a better position than employees to devise
alternatives that would permit the tracking of small amounts
of regularly occurring work time.” Id. For example, the court
reasoned, Starbucks might adapt or develop tools to “track[]
small amounts of time,” or it might “restructure the work so
that employees would not have to work before or after
clocking out.” Id. And even if these solutions were not
practical, the court concluded, “it may be possible to
            RODRIGUEZ V. NIKE RETAIL SERVS.                11

reasonably estimate work time . . . and to compensate
employees for that time.” Id.

    After the California Supreme Court issued its ruling, we
reversed and remanded the District Court’s order granting
summary judgment for Starbucks. Troester v. Starbucks
Corp., 738 F. App’x 562, 563 (9th Cir. 2018). Because the
California Supreme Court had held that the de minimis
doctrine did not apply to the wage and hour claims at issue,
we declined to “reach alternate grounds for appeal, which
challenged the correctness of the district court’s application
of the de minimis doctrine to the evidence presented.” Id.
at 563 n.1.

C. The Instant Appeal

    As noted above, Rodriguez filed his appeal and opening
brief before the California Supreme Court issued its decision
in Troester. The parties subsequently stipulated that
Rodriguez would strike his opening brief and file a revised
brief in light of Troester. In his revised brief, Rodriguez
argues that the District Court erred in granting summary
judgment for Nike based on the federal de minimis doctrine.
Nike argues that reversal is unwarranted because the
amounts of time at issue here are de minimis even under
Troester.

    JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review a grant of summary judgment de novo.” EEOC v.
Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 746 (9th
Cir. 2003) (en banc). “We must determine, viewing the
evidence in the light most favorable to the nonmoving party,
whether there are any genuine issues of material fact and
12           RODRIGUEZ V. NIKE RETAIL SERVS.

whether the district court correctly applied the relevant
substantive law.” Id.

                        DISCUSSION

    The issue on appeal is straightforward: did the District
Court err in granting summary judgment for Nike based on
the federal de minimis doctrine? The answer, after Troester,
is equally clear: the federal de minimis doctrine does not
apply to wage and hour claims brought under the California
Labor Code. By applying the doctrine to Rodriguez’s claims,
the District Court failed—understandably, given the legal
landscape at the time—to “appl[y] the relevant substantive
law.”

    That the District Court relied on the federal de minimis
doctrine is beyond question. Indeed, the court began its
discussion of Nike’s motion by addressing “whether the
[federal] de minimis doctrine applies to claims for violations
of the California Labor Code.” Rodriguez, 2017 WL
4005591, at *6. The court acknowledged that “[t]he outcome
of Nike’s motion for summary judgment hinges on this
question,” and that “the California Supreme Court has not
addressed” the matter. Id. The court even referenced the
pending decision in Troester, noting that “this Court does
not have the benefit of a ruling from California’s high court
that either alters or solidifies the viability of the de minimis
doctrine outside of the FLSA context from which it
originated.” Id. at *7. “Under current law,” the court
concluded, “the de minimis doctrine is a valid defense to
wage claims brought under the California Labor Code.” Id.

    The court’s analysis, moreover, rested on several
premises that Troester explicitly rejected. Both as a
preliminary matter and in its discussion of Lindow’s
“aggregate amount of compensable time” factor, id. at *11,
            RODRIGUEZ V. NIKE RETAIL SERVS.               13

the court repeatedly invoked the federal doctrine’s 10-
minute daily threshold for determining whether amounts of
uncompensated time are de minimis. See, e.g., id. at *12
(“Most courts have found daily periods of approximately
10 minutes de minimis even though otherwise
compensable.” (quoting Lindow, 738 F.2d at 1062)); id.
at *15 (“Drawing all reasonable inferences in favor of
Rodriguez, the daily amount of time is still well within the
10-minute de minimis threshold.”). Troester made clear,
however, that the 10-minute threshold is inconsistent with
California labor laws, under which “an employee must be
paid for ‘all hours worked’ or ‘[a]ny work’ beyond eight
hours a day.” 421 P.3d at 1120 (alteration in original)
(citations omitted) (first quoting Cal. Code Regs. tit. 8,
§ 11050(3)(A)–(B); then quoting Cal. Lab. Code § 510(a)).
After Troester, “[a]n employer that requires its employees to
work minutes off the clock on a regular basis or as a regular
feature of the job may not evade the obligation to
compensate the employee for that time by invoking the de
minimis doctrine.” Id. at 1125.

    Likewise, in its discussion of “the practical
administrative difficulty” of recording exit-inspection time,
the District Court assumed that Nike was required to prove
“only that it would be administratively difficult to [record
inspection time] given its timekeeping system.” Rodriguez,
2017 WL 4005591, at *13–14. But Troester expressly
“decline[d] to adopt a rule that would require the employee
to bear the entire burden of any difficulty in recording
regularly occurring work time.” 421 P.3d at 1125. To the
contrary, Troester held that “employers are in a better
position than employees to devise alternatives that would
permit the tracking of small amounts of regularly occurring
work time.” Id. And Troester explained that “even when
neither a restructuring of work nor a technological fix is
14           RODRIGUEZ V. NIKE RETAIL SERVS.

practical, it may be possible to reasonably estimate work
time . . . and to compensate employees for that time.” Id.
Rodriguez proposed such an alternative, pursuant to which
fixed amounts of time would be added to employees’
paychecks. He also proposed an alternative whereby
employees would undergo inspections at the back of the
store before clocking out. Cf. id. (“One such alternative,
which it appears Starbucks eventually resorted to here, was
to restructure the work so that employees would not have to
work before or after clocking out.”). Although the court
acknowledged that Rodriguez had made these proposals, it
did not explain why they failed to create a triable issue.
Rodriguez, 2017 WL 4005591, at *13.

    On appeal, Nike essentially concedes that the District
Court applied the wrong legal standard when it relied on the
federal de minimis doctrine. Nike nevertheless argues that
we should affirm the grant of summary judgment on the
alternative ground that the exit inspections at issue are de
minimis even under Troester. As Nike notes, Troester left
open “whether there are circumstances where compensable
time is so minute or irregular that it is unreasonable to expect
the time to be recorded,” and “decline[d] to decide whether
a de minimis principle may ever apply to wage and hour
claims” under California law. 421 P.3d at 1116, 1121. Citing
Troester’s admonition that employers must compensate
employees who “work minutes off the clock on a regular
basis or as a regular feature of the job,” id. at 1125, Nike
argues that Troester “rejected the de minimis defense as
applied to a matter of minutes worked ‘off the clock,’ not a
matter of seconds.” Because “only 3.3% of the exits
[measured by Crandall] lasted more than 60 seconds,” Nike
contends, “the occurrences where exits were more than mere
seconds were irregular.”
              RODRIGUEZ V. NIKE RETAIL SERVS.                        15

    To the extent Nike urges us to interpret Troester as
replacing the federal de minimis doctrine’s 10-minute daily
threshold with a state-law 60-second analogue, we hereby
decline to do so. Not only would this interpretation read far
too much into Troester’s passing mention of “minutes,” but
it would also clash with Troester’s reasoning, which
emphasized the requirement under California labor laws that
“employee[s] must be paid for all hours worked or any work
beyond eight hours a day.” 421 P.3d at 1120 (quotations and
alteration omitted). We doubt that Troester would have been
decided differently if the closing tasks at issue had taken
only 59 seconds per day. 1

    Instead, we understand the rule in Troester as mandating
compensation where employees are regularly required to
work off the clock for more than “minute” or “brief” periods
of time. Id. at 1116, 1125. This rule does not require
employers to “account for ‘[s]plit-second absurdities,’” id.
at 1123 (alteration in original) (quoting Anderson, 328 U.S.
at 692), and it might not apply in cases where work is so
“irregular that it is unreasonable to expect the time to be
recorded,” id. at 1116. But where employees are required to

    1
       It is irrelevant, moreover, that Nike’s timekeeping system records
time in whole-minute increments. The record indicates that Nike’s
system truncates clock-in and clock-out times, such that an employee
who clocks in/out at 10:00 AM and 55 seconds is credited as clocking
in/out at 10:00 AM. Under this system (or a system that rounds rather
than truncates), an employee does not need to undergo an exit inspection
lasting longer than one minute to lose one minute of compensable time.
Instead, an employee who clocks out at 10:00 AM and 55 seconds will
lose one minute of compensable time if they undergo even a 5-second
inspection after clocking out, because they would have been credited as
clocking out at 10:01 AM, rather than at 10:00 AM, if they had been
inspected before clocking out. Whether an employee loses one minute of
compensable time is therefore only a matter of probability, with the
probability approaching 1 as the inspection time approaches one minute.
16           RODRIGUEZ V. NIKE RETAIL SERVS.

work for more than trifling amounts of time “on a regular
basis or as a regular feature of the job,” id. at 1125, Troester
precludes an employer from raising a de minimis defense
under California law.

    Applying this rule to the instant case, we hold that the
District Court’s grant of summary judgment cannot be
affirmed on the record below. As the District Court noted,
the undisputed facts show only “that an exit inspection takes
between zero seconds and several minutes.” Rodriguez,
2017 WL 4005591, at *12. And the evidence before the court
indicated that employees frequently exited multiple times
per day, although it did “not indicate how many times an
employee leaves the store each day, or if an employee ever
leaves more than twice in a single day.” Id. at *15. Moreover,
while Crandall found that 69.0% of exit inspections took less
than 15 seconds, and that 81.4% of inspections took less than
30 seconds, multiple Nike store managers testified, to the
contrary, that longer inspections were common. See, e.g., id.
at *4 (“90% of the time an employee was required to wait
for some period of time for a manager to be available to
perform the exit inspection,” and “60–65% of the time that
period of waiting time was at least a minute.” (quotations
omitted)); id. (“40–50% of the time . . . , the employee had
to wait at least one full minute before the check was
performed.”); id. at *12 (“[A]bout 45 percent of the time an
employee would be required to wait a minute or two for a
manager to become available and perform a security check.”
(quotations omitted)).

    Given this evidence, we cannot conclude that exit
inspections qualify as “split-second absurdities.” Nor do
they appear so “irregular that it is unreasonable to expect the
time to be recorded.” Even according to Crandall’s study, the
vast majority of inspections took measurable amounts of
            RODRIGUEZ V. NIKE RETAIL SERVS.                17

time, and there is a genuine dispute between the parties as to
whether these amounts were more than “minute,” “brief,” or
“trifling.” As such, the record below does not support
affirmance of the District Court’s grant of summary
judgment, and we reverse and remand for further
proceedings consistent with Troester.

   Each party shall bear its own costs on appeal.

   REVERSED AND REMANDED.
