Ninth Circuit Refuses to Boot FLSA Claims: Time Spent Logging On is Compensable
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- The Ninth Circuit Court of Appeals became only the second federal appellate court to address whether an employer is obligated to pay employees for the time spent booting up and signing into their computers prior to clocking in.
- With the two circuit courts that have addressed the issue now in agreement, claims for off-the-clock work based on booting up and logging onto computers will become much more prevalent.
- Employers should consult with legal counsel to assess if they are vulnerable to such claims and stay tuned for further developments regarding this evolving area of the law.
Is an employer obligated to pay employees for the time spent booting up and signing into their computers prior to clocking in? On October 24, 2022, the Ninth Circuit Court of Appeals became only the second federal appellate court to address this question. In Cadena v. Customer Connexx LLC, 51 F.4th 831 (9th Cir. 2022), the court held that the time spent by call center employees booting up their computers was compensable under the FLSA as an integral and indispensable part of their principal job duties.
The manner in which employees performed their work (answering customer service calls) was central to the court's holding. Specifically, the court noted that the employees worked in-person at a physical call center, that the only method of answering calls was through the computer because separate phones were not provided, and that the computer also provided scripts for calls and customer information. Employees also clocked in and out using timekeeping software on the computers and had to turn on or wake up their computers, log in, and open the timekeeping system before they could clock in. Because all of the employees' principal duties required the use of a functioning computer, the time spent booting it up and logging in was compensable time worked.
The court's decision in Cadena is in line with the Tenth Circuit's decision in Peterson v. Nelnet Diversified Solutions, LLC, 15 F.4th 1033 (10th Cir. 2021), the only other federal appellate court to address this issue. In Peterson, the employees worked at an in-person call center servicing student loans, and used timekeeping software installed on their employer-provided computers to track their hours worked. Before being able to clock in using this software, employees had to wake up the computer, insert their security badge into the computer, and enter their credentials. The Tenth Circuit held that this time was compensable under the FLSA because the employees had to use the computers to be able to complete their principal job duties of servicing student loans.
However, both courts limited their holdings to the specific facts of the case, including the fact that the employees were working in person. In fact, the Ninth Circuit stated that it "offer[ed] no opinion on whether the same time would be compensable under the FLSA if [the employees] worked remotely or used their personal computers." Likewise, the Tenth Circuit refused to "speculate about the FLSA's application to teleworkers or the pandemic's broad implications for our digital age." Thus, the question of whether employees who are working remotely - whether full-time, on a hybrid schedule, temporarily, or as a reasonable accommodation - would also have to be compensated for time spent booting up and logging into their computers remains unanswered. However, given the seismic shift in telework and remote work that took place during the pandemic, this question will likely be answered sooner rather than later.
Cadena and Peterson are only the beginning. With the two circuit courts that have addressed the issue now in agreement, claims for off-the-clock work based on booting up and logging onto computers will become much more prevalent. Employers should consult with legal counsel to assess if they are vulnerable to such claims and stay tuned for further developments regarding this evolving area of the law.
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