United States: The tenth circuit reprograms the responsibility of the FLSA for the boot time of the computer
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Wichita, Kan. (January 6, 2022) – As employers were busy dealing with the pandemic and the intermittent world of OSHA ETS orders, the Tenth Circuit further complicated employers’ timing responsibilities. Across the country, employers are using software to track employee time. In a typical day, hourly workers across the country start up their computers, log into their timing software, punch the digital clock, and get to work. Now, according to the Tenth Circuit, employers must pay employees for the time it takes to “boot” the computer.
In Peterson v. Nelnet Diversified Sols., which originated from the Colorado District, the Tenth Circuit ruled that time spent booting up a work computer and launching certain software before clocking in is compensable under the Fair Labor Standards Act (FLSA) because activities are integral and essential to the employment of an employee. main work activities. Coming to the conclusion that the activities were “integral and indispensable” to the main professional activities, the Tenth Circuit punished employers for stepping out of the punching line and into the digital conveniences of the 21st century.
Peterson employees involved in a student loan service center. A typical employee would perform the following steps before starting work: (1) wake up the work computer; (2) log on to the work computer using a password and security badge; (3) load Citrix software, which started a remote desktop including a link to the timing software; (4) access the timing system; and (5) clock in at work for the day. On the same remote workstation, Peterson employees also had access to the email systems, communications systems, and student loan data they used to do their jobs.
Since the employee’s email system and student loan data were stored on the same network as the timing software, the court considered the software to be inseparable, finding that “booting” the computer was an integral part. of the employee’s work. The Tenth Circuit also rejected the argument that lost time (valued by experts at around $ 0.48 per shift) is de minimis – so minimal that the time lost does not matter – because there is no “significant practical administrative burden in estimating the time required”.
The Tenth Circuit Notice penalizes employers who embrace the digital realities of the 21st century and make their employees’ lives more convenient by not requiring them to point to a separate workstation. The opinion of the tenth circuit will have a wide impact. We expect “start-up” lawsuits to be filed across the country in 2022. For employers, the best way forward is probably the easiest: have your timing software give each employee two or three minutes. additional for computer “boot” time. by rounding down the employee’s actual logon time. Adjusting the connection time for employees must meet the de minimis concerns identified by the tenth circuit. Employers in Kansas, Colorado, Utah, Oklahoma, Wyoming, and New Mexico should act and assess potential liability and reconcile any deviations before any action by an employee or the Department of Labor.
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