Tenth Circuit rules that, at least for some jobs, time spent turning on computers is work time under FLSA

The Tenth Circuit ruled that, at least for the jobs in the case before it, the time that employees spent turning on computers was compensable work time, which, for non-exempt workers, must be paid and must count towards overtime.

First the court held that the time counted as work time (or in the words of FLSA law, “compensable” time) because the employees did their work on the computers and had to boot them up to do their jobs:

In sum, we reach the same conclusion that the district court did: The preshift activities of booting up a computer and launching software are integral and indispensable to the CCRs’ principal duties of servicing student loans by communicating with borrowers over the phone and by email. Busk, 574 U.S. at 36; see also Jackson v. ThinkDirect Mktg. Grp., Inc., No. 16-cv-03449, 2019 WL 8277236, at *4 (N.D. Ga. Dec. 9, 2019) (explaining that “requirement of logging in and out of electronics systems needed to process calls is at least integral to the work of answering phone calls” (quoting Gaffers v. Kelly Servs., Inc., No. 16-cv-10128 (E.D. Mich. June 2, 2016)). Booting up a computer and launching software is “an intrinsic element of” servicing student loans and communicating with borrowers because the data and tools necessary to those principal duties exist on the computer. Busk, 574 U.S. at 35. Likewise, Nelnet could not have eliminated these activities “without impairing the employees’ ability to complete their work.” Id. Such integral and indispensable activities are compensable under the FLSA.

Next the court rejected the argument that such time was de minimis (so small it needn’t be counted). The court held it was not de minimis because (a) it could be estimated by the company (b) and occurred with “consistent regularity, (c) even though it could be considered, according to the court, indeed a small amount in the aggregate.

Moreover, because Nelnet’s ability to estimate the amount of time at issue and the consistent regularity with which the CCRs perform these activities weigh more heavily than the relatively small size of the claims in this case, the de minimis doctrine does not apply to excuse Nelnet’s obligation to pay its employees for their work.

In reaching its holding, the Tenth Circuit emphasized that it was expressly noting its decision does not necessarily reach so far as teleworking during the pandemic.

Nelnet also raises general policy concerns about the application of the FLSA in our modern and digital age, including during the COVID-19 pandemic, when telework is increasingly common.

But we need not speculate about the FLSA’s application to teleworkers or the pandemic’s broad implications for our digital age. We need only decide the case before us, which doesn’t concern teleworking.

Source: Peterson v. Nelnet Diversified Solutions, LLC, case no. 19-1348 (10th Cir. 10/8/2021).