Employers who have employees log onto computers before clocking into a time-keeping system and who have them clock out before shutting the computer down may be violating the Fair Labor Standards Act (FLSA) according to the Ninth Circuit Court of Appeals in Cadena v. Customer Connexx LLC. According to the facts in Cadena, employees had to boot up a computer at the start of their shift and only after completing that process could they log into the time-keeping system and clock in; the initial log in process was off the clock. Similarly, at the end of shifts, employees clocked out and then shut down their computer. The trial court granted summary judgment to the employer on the ground that the logging in and logging out processes were not “integral and indispensable” to the workers’ duties. The trial court decided the activities were analogous to waiting in line to punch a conventional time clock.
The Ninth Circuit disagreed. Since it was impossible for the employees to do their jobs without turning on the computers and logging into the employer’s network, the activities that occurred before they were able to clock-in were integral and indispensable to their jobs. The Ninth Circuit reversed the grant of summary judgment, ordering the District Court to consider whether the time spent shutting down was also indispensable and whether the total amount of time involved was de minimis. Alarmingly for defendants in FLSA cases, the Ninth Circuit did note the US Supreme Court has raised a question about whether a de minimis rule is appropriate under the FLSA. “A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles…” Cadena, slip op. pg. 19 quoting Sandifer v. U.S. Steel Corp., 571 U.S. 220, 234 (2014).
What should employers take away from Cadena? Review time-keeping practices and have employees clock-in as early in the process as possible. If employees must boot up before they can clock in, consider whether you can determine the average boot-up time and add it to the employees’ compensable time while also building in a mechanism for employees to report when they encounter delays in booting up. The Sandifer court was not wrong that wage and hour laws are frequently about trifles. Employers are well-advised to anticipate these sorts of claims, trifling though they may seem. Implement procedures to minimize exposure.