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Gelman: Booting Up Computer Is Considered 'Work'

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The U.S. 9th Circuit Court of Appeals reversed a district court’s summary judgment in favor of defendant Customer Connexx LLC and remanded for further proceedings in a collective action brought under the Fair Labor Standards Act by Las Vegas call center workers.

Jon L. Gelman

Jon L. Gelman

The workers provided customer service and scheduling to customers over a “soft phone” operated only through their employer-provided computers. They alleged that their time booting up and shutting down their computers was an integral and indispensable part of their principal duties, making the time compensable under the FLSA, as amended by the Portal-to-Portal Act.

The judge wrote:

“Like many employers, Connexx has a policy prohibiting 'off the clock' work and requires hourly employees to record their actual hours worked each day. Employees clock in and out using a computer-based timekeeping program, which they must do before accessing other job-relevant programs. To reach the timekeeping program, employees must awaken or turn on their computers, log in using a username and password, and open up the timekeeping system. Appellants are not assigned to a particular computer and they testified that, depending on the age of the computer and whether the computer was off or in sleep mode, it would take anywhere from a minute to 20 minutes for the computer to boot up so they could clock in. Appellants estimate the average boot-up time is between 6.8 to 12.1 minutes. Connexx allows employees to correct inaccuracies in their time cards that occur due to technical issues using a 'punch claim form.'”

The panel concluded that the district court correctly identified the workers’ principal duties as answering customer phone calls and scheduling appliance pickups. Agreeing with the 10th Circuit, the panel held that the workers’ duties could not be performed without turning on and booting up their work computers, and having a functioning computer was necessary before the workers could receive calls and schedule appointments.

Accordingly, turning on the computers was integral and indispensable to the workers’ duties and was a principal activity under the FLSA. It, therefore, was compensable.

The panel reversed the district court’s summary judgment on the FLSA claim and remanded to the district court for consideration of whether time spent shutting down computers was compensable, whether the time spent booting up and down the computers was not compensable under the de minimis doctrine, and whether Connexx had no knowledge of the alleged overtime such that it was not in violation of the FLSA’s overtime requirements.

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.

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