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Court Rules Boot Up Time Compensable Under the FLSA

Thomson Reuters Tax & Accounting  

Thomson Reuters Tax & Accounting  

The U.S. Court of Appeals for the Ninth Circuit has ruled that time spent by employees booting up their computers was compensable under the Fair Labor Standards Act (FLSA) as integral and indispensable to their principal job duties [Cadena v. Customer Connexx LLC, CA9, Dkt. No. 21-16522, 10/24/2022].

The facts.

Cariene Cadena and other call center workers provide customer service and scheduled customers using computers provided by their employer, Customer Connexx LLC (Connexx). The workers were non-exempt employees and paid on an hourly basis. Workers are required to clock in and out using a computer-based timekeeping program prior to accessing other computer programs. The workers estimate that it can take up to twenty minutes before the computer would boot-up so they could clock in due to the age of the computer or whether the computer was off versus in sleep mode. Workers may correct inaccurate timekeeping using a “punch claim form.” When a shift ends, workers close out of programs, clock out, then log off or shut down computers. The average time to log off and boot down computers was estimated between 4.75 to 7.75 minutes. The workers assert that the FLSA and Nevada law require Connexx to pay the employees for the time to boot up and boot down computers. The district court granted summery judgment to Connexx and found that the time spent booting up and down were not “principal activities” related to the answering calls and scheduling tasks. The district court claimed that the timekeeping process could be dispensed with and the workers could still perform their work and compared the time spent as similar to lining up at a physical time clock to punch in.

The law.

The FLSA, as amended by the Portal-to-Portal Act of 1947, generally excludes from compensation activities that are preliminary or postliminary to the principal activity or activities that the employee is employed to perform (see 29 USC 254(a)); however, preliminary and postliminary activities are still compensable under the Portal -to-Portal Act if they are integral and indispensable to an employee’s principal activities. To be integral and indispensable, an activity must be: (1) “necessary to the principal work performed,” and (2) done for the benefit of the employer.

The ruling.

The court noted there was no dispute regarding what the employee’s duties are, therefore, the court first examined how those duties are performed. The court noted that the workers did not have assigned computers and used whatever station was available. Whether a machine had to boot up cold or was in sleep mode depended upon the prior user. While the court agreed that booting up was not a task they were hired for, it was a necessary task to “engage” the computer that contained the programs required to do the job. Therefore, instead of examining whether using a timekeeping system was integral, the court determined that booting up the computer was necessary in order for the employees to perform their primary duties. The court was careful to note that not all activities that an employer requires is compensable, however, the required activity (booting up) “bears such a close relationship to the employees’ principal duties that employees cannot eliminate the required activity and still perform their principal duties.” Connexx also argued that the time spent booting up, is not compensable because it is de minimis and that the did not have “actual or constructive knowledge of the alleged overtime.” The court declined to address either argument and instead directed the district court to decide on the merits of the arguments upon remand.

The takeaway.

The Ninth Circuit ruling applies to Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well as the U.S. territories of Guam and the Northern Mariana Islands. Employers may wish to consider separating their timekeeping systems from other computer applications that are necessary for an employee to perform work to avoid running afoul of FLSA requirements.

 

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