The U.S. Court of Appeals for the Ninth Circuit recently held that employers who decline to pay employees for time spent waiting for computers to “boot up” could be in violation of the Fair Labor Standards Act (“FLSA”).  The appeal, Cadena v. Customer Conexx LLC, No. 21-16522 (9th Cir. 2022), reversed a prior U.S. District Court for the District of Nevada ruling.

Under the Portal-to-Portal Act, employers are not required to pay employees for time spent traveling to and from their principal place of work or for time spent on certain preliminary or postliminary activities. However, if the preliminary and postliminary activities are “an integral and indispensable part of the principal activities” for which the individual is employed, then the time is compensable.

In Customer Connexx, call center workers employed by the employer alleged they were not paid, as required under the FLSA and Nevada law, for time spent booting up their computers before logging on to their employer’s timekeeping system, nor for time spent turning off their computers after logging off. The District of Nevada found that booting up and turning off work computers were noncompensable preliminary and postliminary activities because the activities were not “principal activities” as the employees were not hired for that purpose.

The Ninth Circuit reversed, finding that “booting up” activities were essential to the workers’ jobs: “The employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments.”  Put another way, “employees could not perform their principal duties without first booting up their computers.” Thus, the time was both integral and compensable under federal and state law.

The National Law Review offers a terrific breakdown of U.S. Supreme Court precedent on what is deemed “integral and indispensable work activity”:

  • Steiner v. Mitchell, 350 U.S. 247, 256 (1956): Held that “activities performed either before or after the regular work shift . . . are compensable . . . if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.”

  • IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005): Held that activities that are “integral and indispensable” are themselves treated as “principal activities” under the Portal-to-Portal Act.  In addition, the first principal activity of the day begins the workday, and any waiting time that occurs between the first sand last principal activity is compensable.

  • Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 36 (2014): Further clarified that “integral and indispensable” activities are those that (i) are an intrinsic element of the principal activities the employee was hired to perform, and (ii) tasks that the employee cannot dispense with in order to perform his or her principal activities.

The Ninth Circuit covers California, Nevada, Arizona, Alaska, Hawaii, Idaho, Montana, Oregon, and Washington.  Its unanimous October 24th published opinion is available here:

Cockle expects that the Corporate Defendants-Appellees will seek cert. review with the U.S. Supreme Court in January 2023.  For updates, stay tuned to the CockleBur.