Ever heard of a “soft phone?” It allows phone calls to be received through a computer. There’s no additional hardware, other than the computer running the program, needed to accept a call. Call centers use this technology. Just one question: Should an employer pay its employees for the time it takes to boot up their computer and to shut it down? One employer found out that the answer is “yes.” Read on.
Dialing Into the Facts
Connexx operates a call center that provides customer service and scheduling for an appliance recycling business. Employees operating the soft phones use their computers to perform their jobs, which includes not just receiving calls, but also accessing scripts, customer information, and email functionality.
They turn on their computers, log in with a username and password, and open the timekeeping system. Depending on the age of the computer and whether it’s fully shut down or in sleep mode, it can take between 6.8 to 12.1 minutes to complete this boot up time.
Well, to update a well-known expression, a few minutes here and a few minutes there, and soon, you’re talking some serious coin (not just for the employee, but for the employer).
Dialing Into the Law
The Fair Labor Standards Act (FLSA) contains a provision called the Portal-to-Portal Act. It mandates that an employee be paid for any activity (pre and post shift) that’s tied to the job that the worker is employed to perform.
Let’s do a sample run down. Think of these examples as end points on a continuum. The following tasks are compensable:
- Time spent showering after a shift at a battery factory because workers were exposed to toxic dust;
- Sharpening knives before butchering animals at a meatpacking plant; and
- Servicing a machine used by a worker during a shift.
And the following tasks are not compensable:
- Time spent waiting to put on protective equipment as the first principal activity of the day; and
- Security screening before leaving a warehouse.
The last example above isn’t compensable because there’s no intrinsic connection with employee’s job of retrieving products from shelves and packing them for shipment. That’s the main point: If it isn’t necessary to perform the functions of your job, it’s not compensable.
Busy Signal for Employees? Or Employers?
Where do the Connexx employees fall on the continuum?
According to the U.S. 9th Circuit Court of Appeals: “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.” So, the employees must be paid for this time. Cadena et al v. Customer Connexx LLC (9th Cir. October 24, 2022)
Ring! Ring! This Is Your Wake-Up Call!
You may have noticed that this was a 9th Circuit case, which is known for being a very pro-employee court. But take little comfort in this fact. The analysis of the court’s decision was sound, and the 5th Circuit (whose rulings apply to Texas employers) may follow its lead.
So, check with your vendor if you have this type of phone system. See if you truly understand how the technology works and how you might be able to make it work for you if you end up in this situation. It might be a good idea to upgrade your computers or have a rule about how computers are left at the end of a shift.
More broadly, speak to your employment lawyers abut starting to pay employees for this start-up time. Your lawyer can also explain the de minimis doctrine, which states that you don’t need to pay if the amounts involved are negligible. But whatever you do, no action isn’t an option.