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As Time Goes by…Pay Practices Which May Be a Surprising Risk for Employers—Part 1



As it turns out, yes, people do care about time. Two recent court cases highlight some of the risks for employers when pay and timekeeping practices don’t comport with wage and hour laws. We’ll provide overviews of each case and key takeaways for employers in a two-part blog series.

Time Spent Waiting For A Computer To Boot Up May Be Compensable For Call Center Employees

The Ninth Circuit recently concluded that for employees working in one call center, the time they spent waiting for their computer to boot up and the electronic timekeeping system to be available was working time and had to be paid by the employer.

In Cadena v. Customer Connexx LLC, call center employees would arrive for work and go to one of the available computers in the call center. They had to either “wake up” the computer or boot it up entirely before they could enter their log-in credentials. Once they had completed logging in, they would open the timekeeping system and clock in for their shift. After that, they opened up all the software programs they needed to perform their job. At the end of their shift, they would close all the software programs, clock out, and then either simply log out of the computer or shut down the computer completely.

Two of these employees filed a class action lawsuit, seeking pay for the time spent getting the computers up and running through when they were able to clock into the time keeping system, and for the time after they clocked out until they either logged out or finished shutting down the computer.

While the actual time was apparently dependent on the age of the computer and whether it had been fully shut down the day before, the employees estimated the average was in the range of 6.8 minutes to 12.1 minutes. For the end of the day, the employees estimated it took an average range of 4.75 to 7.75 minutes.

The trial court dismissed their claims, analogizing the time spent in getting the computers to the timekeeping program to employees waiting in line to clock in or out at a time clock, which time is generally not considered to be compensable time.

On appeal, the Ninth Circuit disagreed with that analogy, at least as to the time spent waiting to clock in at the beginning of a shift. In the Ninth Circuit’s view, because an operating computer was necessary for the employees to perform their jobs, time spent getting the computers up and running was integral and indispensable to their jobs and was therefore compensable time. This would be similar to a butcher sharpening knives before beginning work or preparing equipment used in performing the job, examples that the court provided. This was different from standing in line to use a time clock because the time clock itself was not necessary to performing whatever job the employee might have.

As to the end of shift activities, the Ninth Circuit thought that there may be an issue of fact as to whether those were integral and indispensable to the employee’s job, and whether that was compensable time, remanding it to the trial court for further consideration.

The Court also considered whether the time at issue was not compensable under the de minimis doctrine, where courts essentially hold that the amount of time is so small that the court is not going to allow a claim to be made on it. While the Ninth Circuit remanded that issue to the trial court for further consideration, the court spent some time discussing cases in which the de minimis doctrine had been rejected in cases involving wage claims, strongly indicating that it could find the doctrine did not apply to wage claims. Note, also, many states (such as Washington and California, as is discussed more in the next entry in this series) have not adopted the de minimis doctrine for claims under the state’s wage and hour laws.

Key Takeaways: Employers who utilize computer programs for timekeeping should consider whether the system is capturing all time that would be considered work time for that employee. While this case obviously has applications to call centers who use computer programs for performing their job duties, the same analysis could easily apply to any job in which the employee necessarily utilizes a computer to perform their duties. There are various different ways a situation like this could be addressed. An employer with such concerns should contact an employment attorney for assistance.

The legal issues impacting workplaces are ever changing (Employment Law in Motion!) and since publication, new or additional information not referenced in this blog post may be available.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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