Should Time Worked Include Computer Boot-Up Time? - American Society of Employers - Anthony Kaylin

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Should Time Worked Include Computer Boot-Up Time?

wage and hour clockA recent U.S. 9th Circuit Court of Appeals case addressed this very question.  In Cadena et al. v. Customer Connexx LLC et al., No. 21-16522 (9th Cir. Oct. 24, 2022), the court had to determine when computer boot-up time is compensable.

In Cadema, employees worked in-person as call-center agents and filed a lawsuit that the company had failed to pay them for time they spent booting up their computers prior to clocking into the company’s electronic timekeeping system and turning off their computers after clocking out of the timekeeping system.  Specifically, the employees work in-person at the call center in a variety of hourly-paid, non-exempt positions, including as call center agents whose primary responsibilities are to provide customer service and scheduling functions for customers over the phone.

Like many employers, Connexx has a policy prohibiting “off the clock” work and requires hourly employees to record their actual hours worked each day. Employees clock in and out using a computer based timekeeping program, which they must do before accessing other job relevant programs. To reach the timekeeping program, employees must awaken or turn on their computers, log in using a username and password, and open up the timekeeping system.  The employees estimate that it would take anywhere from a minute to twenty minutes for the computer to boot-up so they could clock in. They estimate the average boot up time is between 6.8 to 12.1 minutes. Connexx allows employees to correct inaccuracies in their timecards that occur due to technical issues using a “punch claim form.”

When employees are finishing the day, the policy is that employees wrap up any calls they are on, close out of job-relevant programs, clock out, and then log off or shut down their computers. The employees estimate that it takes about an average of 4.75 to 7.75 minutes to log off and boot down the computers.

At the trial court level, the court ruled for the company in summary judgement, stating that the tasks the workers completed before and after logging out of the company's timekeeping system were not compensable because they were not “principal activities.”

On appeal, the 9th Circuit overturned the trial court’s ruling.  The court first noted that, under the Portal-to-Portal Act, preliminary and postliminary activities are compensable if they are an integral and indispensable part of the workers’ principal activities and if so, “it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”

The court then stated that the trial court wrongly based the decision on whether “engaging with a computer and loading a timekeeping program to clock in” was an integral part of the employees’ duties. Instead, the trial court should have put emphasis on whether “engaging the computer, which contains the phone program, scripts, customer information, and email programs is integral to the employees’ duties.”   It also pointed out that the Tenth Circuit recently reached the same conclusion when faced with a similar claim from call center representatives.

Based on the facts in the record, the 9th Circuit held that the time was compensable because "the employee's duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments."

The court then sent the case back to the trial court to determine if (i) the time spent booting down was compensable; (ii) the time spent booting up and down was not compensable under the de minimis doctrine; and (iii) Customer Connexx lacked actual or constructive knowledge of the alleged overtime worked, such that it did not violate the FLSA by failing to pay for it.

The takeaway for HR as Holland & Hart LLP explains: “As more and more jobs rely on computers as employees’ primary tool, employers should reevaluate whether they are properly compensating employees under the FLSA in light of this decision” regardless of whether it is a call center situation or other work situation. 

 

Source:  Holland & Hart LLP 10/31/22

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