9th Circ. Says Booting Up Computers Is Compensable


by Irene Spezzamonte Monday, October 24th 2022: Original article can be found here.

Law360 (October 24, 2022, 5:59 PM EDT) — The time a group of call center workers spent booting up their computers is intertwined with their work and therefore compensable under federal law, the Ninth Circuit ruled Monday, overturning a win a district court handed to their employer.

In a published and unanimous opinion, a three-judge panel flipped a Nevada district court’s 2021 decision granting Customer Connexx LLC summary judgment on the workers’ overtime suit, saying that they needed to have a functional computer in order to do their jobs. Therefore, the time the call center workers spent booting up the computers is compensable under the Portal-to-Portal Act, the panel said, remanding the case to the lower court.

“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,” U.S. Circuit Judge Jay S. Bybee wrote on behalf of the panel.

Under the Portal-to-Portal Act, which amended the Fair Labor Standards Act, employers don’t owe pay for time workers spend traveling to and from the place of principal work activities or for time they spend on certain preliminary or postliminary activities.

The workers sued in 2018, alleging that Connexx, a subsidiary of JanOne Inc., failed to pay them overtime as required by the FLSA and Nevada law for the time they spent booting up and turning off their computers after they logged into and out of the company’s timekeeping system.

After certifying a collective, the district court granted Connexx summary judgment in July 2021, finding that the tasks the workers completed before and after they logged out of the company’s timekeeping system weren’t compensable preliminary and postliminary activities because they weren’t connected to their jobs.

But the panel disagreed Monday, saying the district court erred in focusing its reasoning on whether the activities were essential to the workers’ jobs and should have instead put emphasis on whether starting the computer led the call center workers to be able to perform their work.

“When the employees’ duties are understood in this way, the electronic timekeeping system becomes a red herring. It is a convenience to the employer,” the panel said. “It has no impact on the ‘integral and indispensable’ analysis except to show us when Connexx began counting the employees’ time.”

Because the workers needed to have “a functional computer … turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities,” the panel concluded.

However, the panel clarified in a footnote that its opinion focused on the pre-shift activities, saying that turning the computers off would not be an integral part of the workers’ jobs.

The panel also turned down Connexx’s argument that the present case is different from Peterson v. Nelnet Diversified Solutions , which the Tenth Circuit examined last year, because the workers in that matter did perform several tasks before they were actually clocked in.

In Peterson, the Tenth Circuit found that there was an “obvious connection” between pre-shift work call center representatives did and the work they were employed to perform, finding that that time was compensable.

The pre-shift work the call center workers performed in Peterson “is not fundamentally different from the process to which Connexx employees have testified,” and therefore the company’s “proffered differences do not hold up,” the panel said.

The panel also declined Connexx’s argument that the district court’s decision should be affirmed because the pre-shift time was de minimis and because the company was not aware of the alleged overtime, saying that those are “factual questions” that the lower court didn’t address.

The dispute stems from a lawsuit Danielle Curley filed in January 2018 in state court. Connexx removed the suit to federal court the following month.

In May 2019, the court signed off on a collective and 15 workers decided to opt in. In January 2020, the court dismissed Curley from the suit after she became unresponsive and substituted her with Cariene Cadena and Andrew Gonzales.

Connexx moved for summary judgment, leading to the 2021 decision the workers appealed.

In an amicus brief in December, the U.S. Department of Labor backed the workers, similarly arguing to what the panel concluded Monday that the workers could not do their jobs without booting up the computers.

Leah Lin Jones of Thierman Buck LLP, who represents the workers, said Monday that she looks forward to keeping up the fight for the workers’ FLSA and state claims.

“Plaintiffs look forward to getting back to the district court in order to prove both the employer’s knowledge and the fact that the time spent booting up and shutting down their computers was not de minimis pursuant to the FLSA,” Jones said. “Plaintiffs also look forward to further addressing plaintiffs’ Nevada state law claims, which, by the way, Nevada does not have a de minimis doctrine nor does it follow the Portal-to-Portal Act.”

Representatives of Connexx did not immediately respond to requests for comment Monday.

U.S. Circuit Judges Jay S. Bybee, Consuelo M. Callahan and Daniel P. Collins sat on the panel for the Ninth Circuit.

The workers are represented by Joshua D. Buck, Leah Lin Jones and Mark Russell Thierman of Thierman Buck LLP.

Connexx is represented by Paul Theodore Trimmer and Veronica T. Hunter of Jackson Lewis PC.

The case is Cariene Cadena et al. v. Customer Connexx LLC et al., case number 21-16522, in the U.S. Court of Appeals for the Ninth Circuit.

–Editing by Leah Bennett.

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