Pre-Shift Time Spent Booting Up the Computer May Be Compensable
Even though the amount of time it takes to turn on the computer and launch software before officially starting work may be minimal, the U.S. Court of Appeals for the Tenth Circuit warned that it may still be compensable time under the Fair Labor Standards Act.
In Peterson v. Nelnet Diversified Solutions, LLC, call center employees sued because they were not paid for the time required to boot up their computers and launch software before clocking in. Under the Portal-to-Portal 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. In this case, even though the activities to turn on and prepare the computers took little effort or concentration, they were integral and indispensable for the employees’ work, and could not be eliminated without impeding such work.
But such activities still are not necessarily compensable under the de minimis doctrine, which provides that “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Courts apply three factors to determine whether work time is non-compensable under the de minimis doctrine: (1) the practical administrative difficulty of recording the additional time; (2) the size of the claim in the aggregate; and (3) whether the employee performed the work on a regular basis. The factors are not individually determinative – they are considered as a whole.
In the current case, the amount of time at issue was between 1.6 minutes to 2.27 minutes, depending on the facility at which the employees worked. In applying the three factors, the Tenth Circuit first found that the employer could not identify any particular practical administrative barrier to estimating the time required for these activities (and in fact, its expert had calculated such time). Moreover the pre-shift time was generally the same for every employee doing the same job at the same location. Next, the Tenth Circuit found the second factor to be neutral in that the aggregate claim per employee, even though only pennies per day, could amount to $125 a year (and approximately $30,000 for the entire group), which is not insignificant for low wage workers, but also is not a particularly large amount in comparison with other de minimis cases. Finally, the Tenth Circuit noted that these pre-shift activities occurred regularly. Thus, on balance, the doctrine supported the compensability of the activity.
This case poses a warning for employers whose non-exempt employees are engaged in computer-based work that the simple activity of turning on the computer and launching software may, in fact, be compensable time. (And we note that the cost of litigation, in this matter, far outstripped the money at issue).