The issue of working time, especially the issue of preliminary and postliminary activities and what activities are compensable, haunts me as a practitioner and is confusing for employers. Many of these cases involve call centers. Now, the Ninth Circuit has handed down a decision that reinforces the premise that starting up computers before shift start may be compensable time. The case is entitled Cadena v. Customer Conexx LLC, and issued from the Court of Appeals for the Ninth Circuit.
The appellate court reversed the lower court which had ruled that the employees were not paid to start their computers or clock in after those computers were turned on. The Ninth Circuit disagreed with this reasoning, finding this was the wrong emphasis in ascertaining whether such activities were “integral and indispensable” to their primary duties. The Court held that the case should have turned on “the importance of booting up the computer to the employees’ primary duties of answering calls and scheduling rather than to their need to clock in using an electronic timekeeping system.”
The Court concluded that since the main job of the workers involved computers and they could not do their main job without computers (e.g. access customer information and email programs), the time botting them up was therefore integral to their principal activities. Therefore, the time was compensable. The Court would not address the de minimis and lack of employer knowledge arguments, finding these were factual and therefore for a jury to decide.
At trial, if it gets that far, the Company’s de minimis defense will be tested. That does not detract from the fundamental issue that the Court (and others as well) held that the act and function of booting up is integral and indispensable to the actual work done.
The Takeaway
It is clear to me that booting up computers for these kinds of workers, e.g. call center employees, is directly tied to the primary job and therefore this preliminary and postliminary (i.e. shutting down computers) is compensable time, subject to the de minimis caveat. Therefore, employers have to allow workers to clock in before they start booting up; if the employer wants the employees to boot up prior to shift start, so they can immediately begin servicing customers, then they have to track that time and pay accordingly. Another option is to “allow” five minutes at the start/end of the day to boot up. By the way, I have but little faith in the de minimis argument as a winning defense.
Don’t put all your eggs in that losing basket…