Seyfarth Synopsis: A federal district has parted company with two appellate circuits in holding that computer boot-up time is non-compensable under the FLSA.
An all-too-common fact pattern in wage-hour litigation is the non-exempt employee who (i) turns on or wakes up their computer; (ii) enters their username and password; (iii) if they are remote, accesses a VPN and or dual-authentication application for themselves; and then (iv) open the timekeeping system before clocking in. Such boot up time before clocking in, Plaintiffs' lawyers argue, is compensable time but isn't captured in the timekeeping system and therefore isn't paid.
A U.S. Department of Labor fact sheet and decisions from the 9th Circuit (Cadena v. Customer Connexx LLC) and 10th Circuit (Peterson v. Nelnet Diversified Sols.) have supported that theory. And because some courts have been reluctant to apply the de minimis defense, employers have not fared as well as hoped when facing claims for back overtime pay for boot-up time.
Earlier this month, however, the United States District Court for the Southern District of Ohio held that boot up time generally is non-compensable under the FLSA in Lott v. Recker Consulting LLC. Going back to basics, the court began with the premise that compensable time is an employes' "principal activity or activities" and those that are an "integral" or "intrinsic element" of those activities. Merely requiring an employee to engage in an activity does not render it compensable.
When viewed through that lens, boot-up time for an employee who uses a computer to handle calls and inquiries is neither an employee's principal activity or intrinsic to it. Yes, the computer is necessary for the employee to do their job. But according to the court, "the question is whether the activities of merely turning the computer on and logging in are integral to the employees' duties" (as opposed to whether a given tool is integral). The court held that such activities are not integral because "turning on a computer and logging in merely opens up an innumerable realm of possible uses and functions for the user. Some of those activities are work-related, others are not" (such as "playing Soduku online, perusing Reddit, or reading an article on CNN.com").
Disagreeing with the 9th and 10th Circuits, the court held that "the workday starts at the moment a remote worker opens and begins operating a program or application they use as part of the principal work activities they are employed to perform" (emphasis added).
Notice the presence of the word "remote" in the court's holding. This case does indeed involve employees who work from home, and the introduction to the court's opinion featured facts common to a work-from-home scenario. But make no mistake: the court's reasoning applies to workers both remote and who come into an office or call center.
The court's decision and persuasive reasoning will help employers limit and potentially defeat similar boot-up time claims (whether by remote or office-based workers), at least outside the 9th and 10th Circuits.
Employers need to be mindful, however, that not all boot-up case cases necessarily will go the same way. Not only may such cases be filed in the 9th or 10th Circuits, but they could be filed in another jurisdiction that could choose to follow those circuits rather than Lott. The claims could include theories under state law (such as California's, most notably) that define compensable time differently than the FLSA. An employer could engage in a rounding practice that might complicate the analysis, or there could be activities for which an employer did not pay (such as opening up other applications that are intrinsic to an employee's principal activities).
Regardless, Lott is a persuasive authority that should be adopted by other courts and ultimately can reduce employers' risks in how they pay computer-based employees at the start of their shifts.
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