Time Spent “Booting Up” Computers may be Compensable

San Francisco, CA On October 24, 2022, the Ninth Circuit held that the time spent by call center workers booting up their computers could be considered compensable under the Fair Labor Standards Act (FLSA) and Nevada law  because it was integral and indispensable to their primary duties. Although Cadenav. Customer Connexx, LLC is very fact-specific, there is no immediate indication that the decision would be different under California labor law.

Slow program was the only way to perform tasks

Cariene Cadena and Andrew Gonzales were hourly employees working at a call center for Customer Connexx LLC in Las Vegas, Nevada. They brought the lawsuit on behalf of themselves and similarly situated workers under the FLSA and Nevada law, claiming they were not paid for all time worked.

Specifically, they argued that they were not paid for time spent booting up their computers before clocking into a timekeeping program at the beginning of their shifts and for time spent powering down the computers after clocking out of the timekeeping program at the end of their shifts. This failure, they contended, resulted in overtime violations.

The only way to access calls was through a “soft phone” program on the computer. Employees also had to load scripts through the program that corresponded to the specific utility program for which the employer provided scheduling services. It could take between 6.8 and12.1 minutes to turn on the computer.

At the end of their shifts, employees wrapped up any calls they were on, closed out of job-relevant programs, clocked out, and then logged off or shut down their computers. The average log off and boot down time was 4.75 to 7.75 minutes. It is important to note that the employees had no other way to access calls or do their jobs.

The FLSA and the Portal-to-Portal Act

The question before the Ninth Circuit was whether the time they spent before clocking into and after clocking out of the timekeeping system was integral and indispensable to the workers’ primary duty -- fielding customer calls.

The problem is created by the language of the Portal-to-Portal Act, which amended the FLSA in 1947. The Portal-to-Portal Act relieves employers of the obligation to pay employees for “unexpected liabilities” created by the FLSA, including for:

• time spent traveling to and from their principal place of work; and
• time spent on certain preliminary or postliminary activities, except if these activities are “an integral and indispensable part of the principal activities” for which covered individuals are employed to perform.

California courts have recently faced related issues in challenges under California labor law that involve employers’ time-rounding programs.  

At trial the District Court for the District of Nevada held that:

“Starting and turning off computers and clocking in and out of a timekeeping system are not principal activities because [Customer Connexx LLC] did not hire its customer service agents to turn computers on and off or to clock in and out of a timekeeping system. It hired them to answer customer phone calls and perform scheduling tasks. The tasks also are not integral and indispensable to the employees' duties as call center customer service agents.”

The District Court compared log in and log time to “the electronic equivalent of waiting in line to clock in or out of a physical timeclock, which is non-compensable.”

In reversing, the Ninth Circuit held that:

“Because Appellants cannot perform their principal duties—receiving customer calls and scheduling—without a functional computer, booting up their computers at the beginning of their shifts is integral and indispensable and therefore compensable under the FLSA.”

Unanswered questions

The Ninth Circuit ultimately remanded the lawsuit to the Nevada District Court for a decision consistent with its determination that log in time was not necessarily the electronic equivalent of waiting in line to clock in. Two major questions remain unanswered, however.

The Ninth Circuit offered no opinion about whether time spent logging out of the computer system after the worker clocked out was integral and indispensable to the employees’ primary duties. It also did not determine whether the time spent either booting up or booting down the computer system fell within the de minimus exception to the basic “integral and indispensable” rule.

The de minimis doctrine has its origins in the legal principle of de minimis non curat lex—the law does not concern itself with trifles. The Ninth Circuit has previously recognized that the FLSA does not preclude the application of a de minimis rule where dispute concerns only a few seconds or minutes of work beyond the scheduled working hours.