Employers Must Pay Employees for Deminimus Startup Time

Epps & Coulson Logo

Employers Must Pay Employees for Deminimus Startup Time

Booting up work computers takes time.  The call center representative employees (CCRs) at Nelnet Diversified Solutions LLC (“Nelnet”) had to clock in after their computers were up and running and software was launched, but they were not being paid for that time.

Before clocking in, the CCRs had to first start their work computer, then insert a security badge into the computer and enter credentials, then wait for the computer to launch a specialized software program, then wait for the software to load the CCR’s personal desktop and Nelnet’s intranet, and then follow the intranet link to the time-keeping system, before being able to clock into the system and begin earning pay for hours worked – about 2-3 minutes of time.  Many employers consider that ‘deminimus’ time, like waiting in line to go through security before clocking in, putting on employer specialized work outfits or equipment, etc.

The trial court found that the CCRs pre-shift activities were compensable, but also found that the time was too minimal to be compensable (i.e. deminimus).  The CCRs appealed, arguing that it is a violation of the Fair Labor Standards Act (“FLSA”) for an employer to not pay for all time worked by an employee, even these pre-shift activities.

On appeal, the court considered whether the small periods of time CCRs spent each morning waiting for their computers to boot up was de minimis, looking at three factors:

     1. The practical administrative difficulty of recording the additional time.

     2. The size of the claim in the aggregate.

     3. Whether the employees performed the work on a regular basis.

The court thus found that the amount of time devoted to booting up and logging on was not so miniscule that it would be difficult to measure, because Nelnet’s expert was able to do so in the lawsuit.  The court also found that the size of the lost wages claim in the aggregate for all CCRs totaled about $30,000.  Each CCR would be entitled to approximately $2.40 per week, about $125 a year, and for the 4 years at issue, a total each of about $500. The amount was sufficient to support a claim.  And, the CCRs perform the same pre-shift activities before every shift for approximately the same amount of time, depending upon the location.  The CCRs met each of the three factors.

Even deminimus time must be paid to employees for their work, including minor delays in starting each shift or shutting down each shift.

For employers, it is risky to assume that some employee activities will be considered de minimus.  And an employer would have to show that it would be administratively burdensome to track the disputed time.  The safest approach to avoiding costly lawsuits is to work out the logistics in order to ensure employees are paid for any time controlled by the employer.  In the case of Nelnet, the numbers are $500 unpaid wages per employee, plus employee taxes, interest, attorneys fees and costs.  Undoubtedly, the attorneys fees will usurp the wages.

Here at Epps & Coulson, LLP we understand that worker payment issues may be complicated.  We are available to advise.  Feel free to contact Dawn: dcoulson@eppscoulson.com

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

Attorneys admitted to practice in
California, New York, Colorado, Texas, and Oregon