Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

Hourly employee using computer? Does a Florida business have to pay for that time?

An employer operates a call center that provides customer service and scheduling for an appliance recycling business. Employees work in-person at the call center in a variety of hourly-paid, non-exempt positions, including as call center agents whose primary responsibilities are to provide customer service and scheduling functions for customers over the phone.

Before employees are able to access job-relevant computer programs, they must awaken or turn on their computers, log in using a username and password, and open up the timekeeping system. Depending on the age of the computer and whether the computer was off or in sleep mode, it would take anywhere from 1-20 minutes for the computer to boot-up so they could clock in, with an average boot up time is between 7 to 12 minutes.

Once clocked in, employees load various programs and scripts and confirm that their phone is connected and ready to accept calls. Employees use a phone program that operates through employees’ computers rather than through a physical phone.

Employees sued the employer alleging violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”). They contend that they were not paid for the time spent booting up their computers prior to clocking in to the electronic timekeeping system or closing down their computers after clocking out of the timekeeping program.

The district court granted summary judgment to the employer, but the employees appealed and the 9th Circuit Court of Appeals was presented with the following issue: Whether the employees’ time spent booting up and shutting down their computers, through which they access their phone and customer service programs, is an integral and indispensable part of their duties and thus compensable under the FLSA.

The Appellate Court panel reversed the district court’s summary judgment and remanded the case. Cadena v. Customer Connexx LLC, 2022 U.S. App. LEXIS 29511 (9th Cir. Oct. 24, 2022).

The Appellate Court explained that the correct inquiry is whether engaging the computer, which contains the phone program, scripts, customer information, and email programs, is integral to the employees’ duties. All of the employees’ principal duties require the use of a functional computer, so turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities. Because clocking in to the timekeeping program occurs after booting up the computer—the first principal activity of the day—it is compensable.

Although this is not an Eleventh Circuit opinion (which would be controlling in Florida), Florida federal Courts will likely look at this decision carefully because there are few opinions on this issue nation-wide.  Also, this Ninth Circuit decision is consistent with a 2021 decision from the  Tenth Circuit in Peterson v. Nelnet Diversified Solutions, LLC, 15 F. 4th 1033 (10th Cir. 2021).   

Although both of these holdings arose in a call center environment, many other Florida businesses also rely on computers as a tool to perform their jobs.  Many employers have timekeeping systems on the computers.  If these businesses fail to pay for the computer boot up time before the employee clocks in, it can be risky.  The take-home message is that if your business requires employees to boot-up computers in order to do their job, then that time waiting for the computers to boot-up must be paid to the hourly workers.

So, if your employees cannot perform their principal duties while their system is offline, that time spent waiting is compensable time.  If you use old computers, maybe now would be a great time to update to Solid State Drives (SSD) which boot up very fast.  Keep in mind that this issue is not limited to just small offices with desktop computers hard-wired to each other in a network.  So, if you use the “cloud” to store files or use software that is offsite and there is a problem accessing it (even if Wi-Fi is down) then the time the employees spend waiting probably must be paid time.

If you need any assistance in handling wage and hour issues concerning your Florida business or if you need guidance in any employment policies, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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