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January 17, 2023
Ninth Circuit Rules Computer Bootup Time is Compensable

by Brooke Tabshouri

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Employees at a call center were required to use a computer for all job tasks. At the start of each day, they frequently had to turn on computers and wait an average of seven to 12 minutes for the computers to become usable, at which point they could clock in and access the necessary programs to perform their job duties. Because the timekeeping system was on the computer, they weren’t compensated for that time.

The employees sued for violations of the federal Fair Labor Standards Act (FLSA), alleging the time was an integral and indispensable part of their principal duties. The trial court ruled for the employer on the grounds that time spent waiting for the computers to start so wasn’t compensable.

The 9th Circuit (which covers employers in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) reversed the trial court’s ruling, holding that since using computers was an indispensable part of the employees’ job functions, waiting for them to turn on was compensable time.

Employees Sue for Unpaid Time

Nonexempt employees at Customer Connexx worked in-person at a call center in Las Vegas, performing customer service and scheduling functions over the phone. The company had a policy requiring employees to record all time and prohibiting off-the-clock work. Employees clocked in and out using a computer-based timekeeping program, and they were required to clock in before performing any other job functions. All other employee functions were performed on the computer: Calls came in through the computer, and employees had to use software on the computer to perform their scheduling and customer service duties.

Employees weren’t assigned a particular workstation or computer, and accounts varied on whether employees were required to shut their computers all the way down at the end of their shift. Therefore, some employees started their day with a computer that was completely shut down while others used a computer that was just in sleep mode. Depending on the age of the computer and whether it was in sleep mode or completely shut down, it could take employees anywhere between one and 20 minutes for their computer to start—on average, between seven and 12 minutes.

Cariene Cadena and other workers filed a collective action under the FLSA to recover wages for the uncompensated time spent waiting for their computers to become functional at the start of each day and for the time spent shutting the computer down at the end of their shift. The U.S. District Court for the District of Nevada dismissed the case in Connexx’s favor, and the employees appealed to the 9th Circuit. The U.S. Department of Labor (DOL) filed an amicus (“friend of the court”) brief in support of the employees.

Required Time is Compensable Time

Connexx argued the bootup time wasn’t an indispensable part of the employees’ work because it was no different from employees waiting in line to clock in at a time clock, which has long been established as noncompensable under the FLSA. The employees argued that the fact they used the computers for almost all of their job duties made the bootup and shutdown time compensable because it was integral and indispensable to the compensable work they were required to perform—namely, taking calls and performing scheduling duties. The 9th Circuit agreed with the employees on the bootup time but not the shutdown time.

The 9th Circuit stated the “key question is whether turning on and off the computers is integral and indispensable to the employees’ principal activities of receiving customer phone calls and scheduling appliance pickups. If it is, turning on the computer itself is a principal activity . . . and the time spent waiting for the boot up process is part of a continuous workday.” The court concluded it was because the “employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments.” Accordingly, the court found that turning on the computers was indispensable to their duties and was a principal activity under the FLSA. As a result, the time was compensable.

The 9th Circuit did not hold the same for shutting down the computers at the end of the shift. Applying the same analysis, it held that since shutting down computers wasn’t integral and indispensable to the employees’ ability to conduct calls or schedule appointments (indeed, it was unclear whether shutting down the computers was even required at all), that time wasn’t compensable.

Limits of Ruling

The 9th Circuit emphasized that it was considering only the facts of the case before it: Employees who had to work on-site at their employer’s facilities who had to use a computer to perform essential functions of their position. The court stated that it didn’t take a position one way or the other on whether the same reasoning would apply to employees who work remotely or who perform work activities on their personal devices.

Booting up Computer is Compensable

Employers with employees who work on-site using employer-provided computers should develop procedures for ensuring all employee time is recorded and paid, including time spent booting up computers at the start of the workday. To the extent the timekeeping system is dependent on operation of the computer, a mechanism should be identified to account for that time. This situation is a good example of how a very small amount of time associated with the workplace can result in a costly legal process if it isn’t handled properly.

Brooke B. Tabshouri is an attorney with Duane Morris LLP in San Diego. Brooke defends employers and management in all stages of single plaintiff and class action litigation, at state and federal level, against claims of harassment, discrimination, retaliation, wrongful termination, wage and hour violations, and trade secrets theft. You can reach her at bbtabshouri@duanemorris.com.

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