A Reminder that Computer Boot-Up/Down Time May Be Compensable

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We previously discussed an opinion from the U.S. Court of Appeals for the Ninth Circuit, holding that time call-center employees spent booting up their computers is compensable work time, but sending the case back to the trial court to determine if the time was so minimal that it need not be paid. The trial court said yes, but now the Ninth Circuit has decided that is a question for a jury to consider.

Under the Portal-to-Portal Act, which is an amendment to the Fair Labor Standards Act, activities that are preliminary or postliminary to an employee’s principal activities are not compensable. Principal activities include all those that are an “integral and indispensable” to the performance of the productive work that the employee is retained to perform (and not necessarily all the activities required by the employer). In the original ruling in Cadena v. Customer Connexx LLC, the Ninth Circuit found that “All of the employees’ principal duties require the use of a functional computer, so turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities.” Accordingly, such time was compensable.

There are two exceptions to the compensability of such time – if it is too minimal (i.e. de minimis) or if the employer did not know and did not have reason to know that the employees were working the extra time. Last time, the Ninth Circuit initially found that these issues had not been addressed by the federal trial court, and sent the case back for further consideration. The trial court rejected the employees’ argument that the de minimis doctrine was no longer good law, and then applied that doctrine to find that the employees were not entitled to payment for the boot-up/down time.

The employees again appealed to the Ninth Circuit. Although the Ninth Circuit agreed with the trial court that the de minimis doctrine was alive and well, and applicable to overtime claims, it found that there were sufficient factual disputes over whether the time was truly de minimis such that a jury would need to make the decision.

Given this latest ruling from the Ninth Circuit, in addition to the Tenth Circuit’s prior ruling finding such minimal amounts of time to be compensable (as discussed in our October 2021 E-Update), risk-averse employers may wish to ensure that non-exempt employees engaged in computer-based work be paid for the time spent booting up and down the computer, in connection with their primary work tasks.