Nevada Court Rules Employees Turning Computers On and Off is De Minimis and Not Compensable

In Cadena v. Customer Connexx LLC et al. (No. 2:18-cv-00233, U.S. District Court for the District of Nevada, 5/22/2023), Judge Andrew Gordon ruled that the time call center employees spent both booting up computers before clocking into a timekeeping program and powering down computers after clocking out was de minimis (i.e., so insignificant as to not be compensable) under the Fair Labor Standards Act (FLSA). The majority of employees testified that this process took “mere seconds or a couple of minutes.” Further, even in the infrequent instances where such time was not de minimis, Judge Gordon noted that employees could and did request adjustments to claim unrecorded time.

Judge Gordon’s ruling was made following a remand from the Ninth Circuit Court of Appeals, which concluded that, while the time spent turning on the computer and logging into the timekeeping program was compensable as integral and indispensable parts of the employees’ principal job duties, the time spent shutting down the computers was not integral and indispensable. However, the Ninth Circuit held that time spent shutting down computers could still be compensable if the task was determined to be a principal activity in and of itself.  Further, the Ninth Circuit recognized that all of these activities were potentially subject to the de minimis doctrine, on which Judge Gordon ultimately based his ruling on remand.

The Customer Connexx decision highlights the need for Nevada employers to implement and maintain adequate timekeeping policies, and, equally importantly, to understand how those policies are being applied in practice. Employers should have policies prohibiting off-the-clock work, and communicate that policy to its employees. Hourly employees should be required to clock in and out as closely as possible to the time they begin and end their principal job duties.  Management should monitor, and minimize, any necessary activities that extend the time it takes to clock in or out.  It is particularly important that there is procedure for when ordinary processes fail (such as a system failure causing a clock in or clock out to take an extended period of time), to allow employees to report all time actually worked. These best practices are particularly important for employers with medium to large workforces of hourly employees.

Case Facts
Plaintiffs were hourly employees working at a call center for Customer Connexx. Employees were directed to log into a timekeeping system on their computers as their first task before loading and logging into other programs needed to perform their job duties. Employees were also instructed to close out all other programs before logging out of the timekeeping system and shutting down their computers at the end of their shifts. The employees asserted that the failure to account and pay for this time resulted in unpaid wages due under the FLSA.

Employees were able to access the building up to 30 minutes before their start time, and required to swipe their badge when entering and exiting the premises. Given that employees were not required to begin work immediately upon entering the premises, their compensable time was calculated from time recorded in the timekeeping system on the computer, not from badge swipes. Customer Connexx had a policy of prohibiting off the clock work, communicated that policy to employees, and had a means for supervisors to adjust employees’ time to reflect payment of time worked that was not recorded in the timekeeping system. Plaintiffs testified they were aware of this process and used it to report off-the-clock work, including when the process to log into or out of their computers was extended due to technical issues.

Ninth Circuit Remand: Turning On vs. Turning Off Computers
Initially, Judge Gordon granted summary judgment in the employer’s favor, concluding that the time spent booting up and shutting down computers was not compensable under the FLSA. On appeal, the Ninth Circuit reversed and remanded, concluding (1) the time spent turning on computers and logging into the timekeeping program is compensable because it is integral and indispensable to the employees’ principal job duties, but (2) time spent shutting down the computers is not compensable under this theory because it is not integral and indispensable to employees’ ability to conduct calls.

The Ninth Circuit remanded to Judge Gordon the questions of:

1. Whether shutting down computers is compensable “under any circumstances” because such time “may be compensable if the task is determined to be a principal activity in and of itself.”
2. Whether the time booting up and shutting down computers is not compensable under the de minimis doctrine or because the employer did not know of the alleged overtime, as Customer Connexx argued both in its original motion for summary judgment and on appeal.
   

Three-Factor De Minimis Analysis
On remand, Judge Gordon focused on the de minimis doctrine as the dispositive issue. To determine whether otherwise compensable time is de minimis, the factors to consider are (1) the practical administrative difficulty of recording the additional time, (2) the aggregate amount of compensable time, and (3) the regularity of the additional work. Judge Gordon found that the pre- and post-shift time in question is de minimis in the context of each of the three factors.

• Time – Judge Gordon noted that most employees testified it took “mere seconds or a couple of minutes” to turn the computer on and off, “which is consistent with common sense that pushing or clicking a button or opening a computer program typically takes little time.” He also found that the “aggregate amount of compensable time to turn a computer on and off each day even over the course of many months for [the 17 FLSA opt-in plaintiffs] is negligible.”

  
  Judge Gordon noted there is no specific cutoff for what amount of time qualifies as de minimis, although most courts had found daily periods of approximately 10 minutes de minimis even though otherwise compensable. Judge Gordon stated that under the de minimis doctrine, “[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. … It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”

• Practicality – Judge Gordon held that the “practical administrative difficulty of recording this time is obvious,” and further explained that using the employees’ badge swipes in and out of the building to capture time is not a viable alternative because it may not be accurate as a swipe into the building does not necessarily reflect the time the employee started working. “Under the plaintiffs’ proposal, the employer would have to investigate each instance where the badge swipes and timekeeping program varied by more than a minute or so to verify whether the time was spent on compensable activities” [which] “is precisely the type of burdensome task the Ninth Circuit has concluded an employer need not undertake.”
• Regularity – Judge Gordon found that although employees were required to turn computers on and off every day, the occasions when logins or logouts took longer were irregular both in frequency and duration. The employees’ estimates of the time they spent on these activities varied from seconds to 20 minutes and depended on multiple factors, including what shift the employee worked and whether the computer was already on, in sleep mode, off, or was an older model. Even where time spent logging in or out took longer (such that the de minimis doctrine would not apply), employees could and did use punch forms or other means to request supervisors adjust their time.

Judge Gordon’s Ruling
Upon remand, Judge Gordon granted the employer’s motion for summary judgment holding “no genuine dispute remains that the time spent to boot up and shut down the computers was either de minimis or, when not de minimis, was not done with the employer’s knowledge of unpaid time because employees could and did notify Customer Connexx of delayed logins or logouts, and the employees’ time was adjusted accordingly.” Additionally, Judge Gordon ruled that the plaintiff employees “have not pointed to sufficient evidence to conclude that the time was more than de minimis nor have they suggested any way to determine a reasonable estimate of the extent of such work as a matter of just and reasonable inference.”

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