LawFlash

Ninth Circuit Finds Time Booting Up Computers May Be Compensable for Call Center Workers

October 28, 2022

The US Court of Appeals for the Ninth Circuit (which covers California, Nevada, Arizona, Alaska, Hawaii, Idaho, Montana, Oregon, and Washington) held on October 24 in a unanimous published opinion that because call center workers need a functioning computer to perform their jobs, time spent booting up or waking up their computers may be compensable under the Fair Labor Standards Act.

In Cadena v. Customer Conexx LLC, No. 21-16522 (9th Cir. 2022), the court reversed a Nevada district court’s grant of summary judgment. The district court had held that because Connexx did not hire workers to turn on computers or clock into a timekeeping system after the computers were turned on, the time spent booting the computers up was not compensable.

The Ninth Circuit criticized the lower court for this focus in considering whether such activities were “integral and indispensable” to their duties. The Ninth Circuit found that the analysis should have focused 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.”

According to the court, because the workers could not perform their jobs without functioning computers—which contain the phone program, customer information, scripts, and email programs used to perform their duties—time spent booting them up is integral to the principal activities performed by the employees and thus may be compensable.

The court declined to consider Connexx’s arguments that the time was de minimis and thus noncompensable and that the company had no knowledge of the overtime work, finding that those were factual issues that went unaddressed by the district court.

The Tenth Circuit

The Cadena decision follows a similar holding by the US Court of Appeals for the Tenth Circuit in another case involving a customer call center, Peterson v. Nelnet Diversified Solutions, 20-1217 (10th Cir. 2020). [1] In Peterson, the court found that a Colorado district court correctly held that the time call center workers spent booting up their computers was integral to their jobs, but disagreed with the district court’s finding that the time was de minimis.

As to whether the booting-up time was integral, the Tenth Circuit rejected the company’s comparison to an earlier case holding that time spent donning safety equipment was not compensable because it took only a few seconds and required little concentration. As the Tenth Circuit noted, the US Supreme Court had held in the intervening years that the integral-and-indispensable inquiry was the sole test governing compensability.

Practical Effect and Employer Outlook

While the Ninth and Tenth Circuits’ decisions are binding only within those jurisdictions, plaintiffs will likely seek to have their holdings adopted across the country in an effort to establish that where a call center worker cannot perform their job duties without a functioning computer, time spent booting up computers is integral and indispensable to their work and thus compensable.

While the Ninth Circuit left open the possibility that such time could be de minimis, or that the employer’s lack of knowledge of overtime work precludes liability, employers should consider whether their workers require the use of a functioning computer to perform their duties, such that they should be paid for boot up time. If so, employers should ensure that nonexempt employees are either clocking in prior to booting up their computers (through the use of a separate time clock or paper recording) or making an adjustment to employees’ time records to account for boot-up time.

Next Steps

Employers may want to consider auditing the essential functions of nonexempt workers’ jobs to consider whether time booting up computers may be compensable and assessing how long their computers require to boot up. Morgan Lewis lawyers are available to help conduct these assessments.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:

Authors
Shane C. O'Halloran (Philadelphia)
Thomas A. Linthorst (Princeton)
Richard G. Rosenblatt (Princeton / Philadelphia)
Russell R. Bruch (Washington, DC)
Houston
Washington, DC

[1]The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Wyoming, Colorado, and Utah.