Prepared by Anastasia Bondarchuk.

Time Booting Up Computer May Be Compensable Under FLSA

On October 24, 2022, the Ninth Circuit held that time spent by a specific group of call center workers booting up their computers was compensable under the Fair Labor Standards Act (FLSA) as “integral and indispensable” to their principal job duties. The Court’s decision in Cariene Cadena, et al. v. Customer Connexx, LLC, et al., 51 F.4th 831 (9th Cir. 2022) (“Cadena”) , reversed a district court ruling granting summary judgment to the employer-defendant.

In 1947, Congress passed the Portal-to-Portal Act to correct “unexpected liabilities” created by the FLSA.  The Act provides that employers are not required to pay employees (1) for time spent traveling to and from their principal place of work, and (2) for time spent on certain preliminary or postliminary activities, except if these activities are “an integral and indispensable part of the principal activities” for which covered individuals are employed to perform.

In Cadena, call center workers alleged they were entitled to overtime pay for time spent booting up their computers before logging on to their employer’s timekeeping system, and for time spent turning off their computers after logging off. The U.S. District Court for the District of Nevada found these activities were noncompensable preliminary and postliminary activities because “[s]tarting and turning off computers and clocking in and out of a timekeeping system are not principal activities because [the employer] did not hire its customer service agents to turn computers on and off or to clock in and out of a timekeeping system.” The Ninth Circuit disagreed, holding that because the employees “cannot perform their principal duties—receiving customer calls and scheduling—without a functional computer, booting up their computers at the beginning of their shifts is integral and indispensable and therefore compensable under the FLSA.” 51 F.4th at p. 840. In making this finding, the Court emphasized the manner in which the principal duties are performed: The employees must be logged in to a “soft phone” program on the computer to receive customer calls. No hardware is required other than the computer running the program.  Employees also have to load scripts through the program that correspond to the specific utility program for which the employer provides scheduling services.

The Ninth Circuit declined to address two arguments advanced by the employer – that the pre-shift time was de minimis and that the company should not be held liable for the time because it was not aware of the alleged unpaid hours worked. Without ruling on either issue, the Ninth Circuit concluded these were “disputed factual questions” for the district court to decide on remand. The Ninth Circuit further remanded the case to the district court to determine whether shutting down computers at the end of a shift is compensable under any other legal or factual theory.

The Ninth Circuit clarified that its analysis and conclusions are limited only to whether booting up the computers is compensable time, because shutting down the computer is not integral and indispensable to the employees’ ability to conduct calls and would not be compensable under that theory.

The Ninth Circuit offered “no opinion” on whether booting up computers would be compensable under the FLSA if employees “worked remotely or used their personal computers to perform these duties.”

Given the fact-specific nature of FLSA determinations, please contact us if you have any questions about the compensability of your employees’ time spent booting up their computers or performing other tasks. We will be watching Cadena on remand.