April 5, 2017
Security apps, passwords, and slow computers can delay the start of the workday for many of us by one to six minutes. For non-exempt employees, this can become an issue. Office employees who clock in using their work computers may not be able to do so until after they boot up the machine, and they may clock out before certain programs are closed and they have logged out. In light of this daily routine, is an employer required to compensate the employee for this “boot up” or “shut down” time?
The Fair Labor Standards Act (FLSA) requires employers to compensate covered employees for all hours worked (including hours the employee is allowed to work even if not requested). This includes all time an employee must be on duty, on the employer's premises, or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday. (See DOL Fact Sheet No. 22, analyzing what activities are considered part of the “workday” and therefore compensable.) However, there are nuances to this principle, two of which may apply here.
First, under the Portal-to-Portal Act, an employer is not required to compensate an employee for certain “preliminary” and “postliminary” activities (such as traveling and walking time) performed prior to or after the “workday” that are not compensable by contract, custom, or practice (29 C.F.R. § 785.9). Importantly, the act’s exclusion of “preliminary” activities does not include “principal” activities. An employee’s principal activities include “integral and indispensable” tasks necessary to perform the employee’s job (29 C.F.R. § 785.24). For example, an employee’s use of a company vehicle for travel is not a “principal” activity when the employee is simply using the vehicle within the normal commuting area for the employer’s business, and the employer and employee have an agreement regarding use of the vehicle (see § 785.9). However, a knifeman’s time sharpening knives at a meatpacking plant before the scheduled workday is an integral and indispensable part of his or her principal activities (see § 785.25).
The question of whether booting up a computer and logging in is a preliminary activity depends on whether booting up is a regular occurrence and integral and indispensable to the employee’s job duties. For example, the Department of Labor has determined that, for call center employees who must boot up at the start of each shift to commence work, this activity is a principal activity and must be included in computing hours worked. (See DOL Fact Sheet No. 64: “An example of the first principal activity of the day for agents/specialists/representatives working in call centers includes starting the computer to download work instructions, computer applications, and work-related emails.”)
Second, an employer is generally not obligated to pay for work time that is deemed “de minimis” or “insubstantial.” (See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 1946.) In Anderson, the Supreme Court held that when an employee’s claim “concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities or working conditions or by the policy of the [FLSA].” Id. The FLSA regulations adopted the exception:
In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. . . . This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.... 29 C.F.R. § 785.47 (emphasis added).
Though previous courts have held that daily periods of less than 10 minutes are de minimis – Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984) (collecting cases) – recent cases confirm that “[t]here is no precise amount of time” that is considered de minimis. Miller v. Blumenthal Mills, Inc., 616 S.E.2d 722, 735 (S.C. Ct. App. 2005). The Fourth Circuit adopted the Ninth’s Circuit framework for analyzing this question on a case-by-case basis. Perez v. Mountaire Farms, Inc., 650 F.3d 350, 373 (4th Cir. 2011). The court considers three factors when conducting a de minimis analysis: “(1) the practical difficulty the employer would encounter in recording the additional time; (2) the total amount of compensable time; and (3) the regularity of the additional work.” Id. In Perez, the Fourth Circuit held that daily donning and doffing time (time spent changing into protected clothes, uniforms, or other gear) of 10.204 minutes for employees at a plant was not a de minimis activity. Thus, employees were entitled to compensation for that time in cases where experts were able to measure the amount of time required by the activity, and annual amount of compensable time for the activity was equivalent to a week’s pay. Id. at 374.
Courts have held in certain cases that time spent by employees booting up their computers and shutting down and clocking out are “de minimis” and therefore not compensable. But they emphasize the regularity and predictability of the activity, the administrative burden of tracking the time, and the length of time. For example, in Corbin v. Time Warner Entm't-Advance/Newhouse P'ship, 821 F.3d 1069, 1081-1082 (9th Cir. 2016), the court held that an employer did not violate the FLSA by failing to compensate an employee for one minute of uncompensated work time arising from the employee's logging into an auxiliary computer program before logging into employer's online timekeeping system because this activity was de minimis. The court noted that (1) the practical administrative burden on the employer to cross-reference every employee's log-in patterns was high; (2) one minute was a short amount of time; and (3) the uncompensated time was not a regular occurrence, as the employer prohibited off-the-clock work and the employee's standard practice was to log into the timekeeping system before booting up any auxiliary programs. (See also Chambers v. Sears Roebuck and Co., 428 Fed. Appx. 400 (5th Cir. 2011) (unpub.), noting that logging into a device for less than a minute, carrying it to the commercial van, plugging it into the van, and at the end of the day, carrying it back and plugging it in at home to charge was de minimis.)
Employers who are not careful to accurately track working hours and properly compute pay of non-exempt employees may find themselves defending significant FLSA class action claims in federal court. To limit exposure, employers should do the following:
- Have clear policies preventing off-the-clock work and procedures for reporting time that was performed before or after clocking in.
- Train all supervisors and managers on administering these policies.
- Evaluate whether employees regularly perform certain tasks before clocking in (or after clocking out) and whether those tasks are principal activities. If those tasks are principal activities, determine whether the employer should compensate for those considering the three Perez factors discussed above for de minimis
- Add regular and compensable pre-shift activities to the daily hours worked. If your non-exempt employees spend a few minutes every day starting their computer programs prior to clocking in, consider determining the average amount of time spent on these tasks and add that to the computation of daily hours. Remember that, at least with regard to employees clocking in using a computer application and who start the workday by using computers to perform their job tasks, the DOL is inclined to treat this as a principal activity, compensable time that must be tracked.
There are various options for addressing these issues under the FLSA. For example, to maintain a 40-hour work week, employers may decide to have employees end work and clock out a few minutes earlier each day to compensate for their start-up time. It is wise for employers to consult with counsel when adopting and applying wage and hour policies.
 The Portal-to-Portal Act is an amendment to the Fair Labor Standards Act (FLSA) clarifying that certain activities are generally not compensable working time under the FLSA. In particular, the Portal-to-Portal Act provides that employers are not required to pay for the time employees spend on activities occurring before or after (“preliminary or postliminary”) they perform the principal activities for which they are employed.
 In Miller, the South Carolina Court of Appeals reversed summary judgment for the employer where the employee testified that workers were asked to report to work 20 minutes prior to the start of their shift to prepare machines and confirm the prior shift left them ready to begin work, but the employees were not paid for this time. The employer had a policy preventing pre-shift work without management approval, but the plaintiff produced evidence that off-the-clock pre-shift work was required. This case shows the importance of a clear policy preventing off-the-clock work that is consistently enforced by all management, including both supervisors and human resources.
 However, the Corbin court disagreed with its own earlier unpublished decision in Gillings v. Time Warner Cable, LLC, 583 Fed.Appx. 712, 715-16 (9th Cir. 2014) “to the extent inconsistent” with Corbin. InGillings, the court reversed summary judgment for the employer, holding that uncompensated logging in time was significant over time, and although logging in was for a variety of short periods of time (no more than six minutes), there was insufficient evidence of the practical administrative difficulty of recording the additional time, and the regularity of the additional work outweighed the brevity of the periods of time at issue.
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