Wednesday, October 26, 2022

Must an employer pay employees for time spent waiting for computers to boot up?

It's a tale as old as time … or at least as old as employees have been working on computers. You start your work day by turning on your computer, and you wait. Wait for the computer to boot up so that you can then start actually working. That process (which repeats at the end of the work day when you shut the computer down) can take 30 seconds or it can take a few minutes or longer, depending on the age and speed of the machine, the operating system it runs, and the number of apps that need to load during the process. 

Here's the question — Is the time an employee spends waiting for their work computer to boot up compensable working time for which an employer must pay?

According to Cadena v. Connexx LLC (which the 9th Circuit just decided), the answer is an unequivocal yes.

Connexx, the employer, operates a call center. The plaintiff employees are a class of hourly, non-exempt call center agents. Connexx tracks their working time for pay purposes via a timekeeping app on their computers, which they cannot access (along with all of the other apps they use to perform their jobs) until they turn on the machine, boot it up, log in with a username and password, and launch the apps. 

The employees estimated that the entire process would take between one and 20 minutes depending on age of the machine, with an average boot up time between 6.8 and 12.1 minutes.

The employer argued that boot up time was akin to "waiting in line to clock in or out of a physical timeclock, which is non-compensable." The 9th Circuit, however, disagreed in part, concluding that boot-up time is compensable as "integral and indispensable to the employees' duties as call center customer service agents," because their "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."

We … evaluate the importance of booting up the computer to the employees' primary duties of answering calls and scheduling.… 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.… [W]hen, as here, the required activity bears such a close relationship to the employees' principal duties that employees cannot eliminate the required activity and still perform their principal duties, the activity is compensable.

To me, the Connexx court decided this case correctly. Nevertheless, these off-the-clock cases are difficult, expensive, and risky. If you lose, you're not just paying your lawyer, but also the plaintiffs' lawyer. In other words, before you decide that your employees' pre- and post-shift time is non-compensable, stop, take a deep breath, and call your employment lawyer.