By Sally A. Piefer

Wage and hour cases in Wisconsin and across the country have been on the rise. A large percentage of wage and hour cases are filed as class action lawsuits. Often, unsuspecting employers are the targets of lawsuits, or a claim is filed as a result of an employee seeking legal advice on another employment-related topic. Wage and hour cases may not be covered by Employment Practices Liability Insurance (EPLI), and while a single employee claim can be a nuisance, a class-action claim can be very costly for employers, since an employer will be liable not only for the unpaid wages, but also an equal amount in liquidated damages, and attorney’s fees for the plaintiff.

In late 2022, the Ninth Circuit Court of Appeals, which has jurisdiction over much of the west coast, reversed a summary judgment decision which dismissed a lawsuit brought on behalf of a group of call center employees who alleged that the pre-shift and post-shift time they spent booting up and shutting down their computers was compensable.

The employees had to boot up their computers before they could clock into the employer’s timekeeping program, and also had to clock out of the timekeeping program before they could shut down their computers at the end of the day. They alleged that logging into the computer was “integral and necessary” and that following the call center’s protocol resulted in not being paid for all time they worked, which in turn resulted in unpaid overtime. The employees further alleged that the lost time was not de minimis.

The trial court dismissed this aspect of their claims, finding that booting up and shutting down computers was not a principal activity of the jobs of the call center employees. Rather, the employees were hired to answer customer phone calls and assist the customers. The trial court also determined that booting up and shutting down computers was also not integral and indispensable to the employee’s duties because they did not have to log in (or out) of the computer to take a customer’s call. The court likened the activity to an employee who was standing in line to clock in or out, which is normally not compensable.

On appeal, the Ninth Circuit concluded that the trial court erred in considering whether loading the timekeeping program to clock in was integral to the employee’s duties. The Ninth Circuit stated that the correct inquiry was whether “engaging the computer, which contains the phone program, scripts, customer information, and email programs, is integral to the employee’s duties.” Stated alternatively, the Ninth Circuit stated that the court should evaluate “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 the electronic timekeeping system.” The Ninth Circuit reversed the dismissal of this claim and remanded the case back to the trial court to evaluate this question.

On remand, the trial court addressed whether the time the employees spent booting up and shutting down was de minimis. Activities under the Fair Labor Standards Act (FLSA) are considered de minimis when “the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours.” This doctrine is generally concerned with the administrative practicality of recording small amounts of time.

The trial court again dismissed the plaintiffs’ claims, primarily because most of the employees testified it took mere seconds or a few minutes to turn the computer on and off. Therefore, the court determined the time was de minimis. If employees experienced some sort of delay in booting up or shutting down, the record contained evidence that employees sought to have their timecards adjusted.

The plaintiffs have again appealed the dismissal of their claims. Stay tuned for further developments on this issue, but employers should make sure they implement policies prohibiting off the clock work, and evaluating whether their time-keeping procedures comply with the FLSA and applicable state law.