Computer Boot-Up Time May Be Compensable

​The 9th U.S. Circuit Court of Appeals rejected an employer's argument that computer start-up time occurred prior to certain employee shifts and that it was not integral and indispensable to employees' duties. As a result, that time may be compensable. In this case, call-center employees used their computers to make and answer telephone calls, and thus could not perform duties until the computers were turned on.

The plaintiffs and similarly situated employees were employed by Customer Connexx LLC to operate a customer service call center in Las Vegas for an appliance recycling business. Their primary responsibilities were to provide customer service to and schedule appointments for customers over a "soft phone" operated through employer-provided computers.

Plaintiffs worked in a variety of hourly, nonexempt positions, primarily as call-center agents. Connexx prohibited off-the-clock work and required hourly employees to record their actual hours worked each day. Employees clocked in and out using a computer-based time-keeping program, and had to clock in before accessing other job-relevant programs. To reach the time-keeping program, employees had to awaken or turn on their computers, log in using a username and password, and open up the time-keeping system.

The plaintiffs were not assigned a particular computer, and, depending on the age of the computer and whether it was off or in sleep mode, it would take anywhere from a minute to 20 minutes for the computer to boot up. The plaintiffs estimated the average boot-up time was between 6.8 and 12.1 minutes. Connexx allowed employees to correct inaccuracies in their time cards that occurred due to technical issues.

Once clocked in, plaintiffs loaded various programs and scripts and confirmed that their phone was connected and ready to accept calls. Connexx agents used a phone program that operates through their computers rather than a physical phone.

At the end of their shift, employees wrapped up calls, closed out of job-relevant programs, clocked out, and then logged off or shut down their computers. Connexx employees gave varied accounts of how long it took to log off their computers, ranging from less than a minute to 15 minutes, and the plaintiffs estimated it took an average of 4.75 to 7.75 minutes to log off and shut down the computers.

The plaintiffs sued in a Nevada state court on behalf of themselves and similarly situated employees, alleging violations of the overtime provisions of the Fair Labor Standards Act (FLSA) and Nevada law. They contended that they were not paid for the time spent booting up their computers or closing down their computers after clocking out of the time-keeping program.

The defendants removed the case to federal court. The district court conditionally certified the FLSA collective action, and 15 opt-in plaintiffs joined the lawsuit.

Connexx moved for summary judgment on the FLSA claim. The district court granted summary judgment, holding that starting and turning off computers were not principal activities because Connexx did not hire employees for that purpose. The court compared booting up to the electronic equivalent of waiting in line to clock in or out of a physical time clock, which is not compensable.

The plaintiffs appealed to the 9th Circuit, and the United States Department of Labor filed an amicus brief on their behalf.

The appeals court reasoned that the 1947 Portal-to-Portal Act was passed to exclude from hours worked activities that are preliminary or postliminary to employees' principal activities. Thus, activities performed either before or after the regular work shift are compensable only if those activities are an integral and indispensable part of the employees' principal activities.

The court determined that the preparation of equipment necessary to perform principal activities was integral and indispensable to the work. Because the employees must turn on and boot up their work computers to perform their duties, including receiving calls and scheduling appointments, the court found that turning on the computers was time worked and reversed that portion of the district court's decision.

The court recognized that shutting down the computers was not integral and indispensable to the employees' ability to conduct calls. If employees were instructed to shut down their computers at the end of their shifts, however, the time spent might be compensable. Thus, the 9th Circuit directed the district court on remand to determine whether Connexx gave such instructions.

Cadena v. Customer Connexx LLC, 9th Cir., No. 21-16522 (Oct. 24, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.