Another Federal Appellate Court Finds Computer Boot-Up Time May Be Compensable

As we discussed in our October 2021 E-update, the U.S. Court of Appeals for the Tenth Circuit previously found that pre-shift time spent booting up a computer may be compensable work time where the use of the computer is integral and indispensable to the employee’s work. And now the Ninth Circuit joins in.

In Cadena v. Customer Connexx LLC, the employees answered customer service calls on unassigned employer-provided computers. After they booted up their computers, which took anywhere from a minute to 20 minutes (depending on the computer’s age), they clocked in to the timekeeping system.  The employees alleged that they should have been paid for the time booting up and shutting down.

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 this case, 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. The Ninth Circuit found that these issues had not been addressed by the federal trial court, and sent the case back for further consideration. (Note, however, that the Tenth Circuit had found the de minimis doctrine to be inapplicable under strikingly similar circumstances, and it is hard to believe that an employer would not understand that the computer needed to be turned on before logging into the timekeeping system).

The lesson here for employers is that non-exempt employees engaged in computer-based work should be paid for the time spent turning on and booting up the computer, in preparation for their work.