I read an interesting blog post by Seyfarth Shaw on a working time case in a call center. I have often blogged about working time cases, preliminary/postliminary cases, and have lamented that the de minimis doctrine, often used as a defense by employers, seems to never work as such a defense. Following a 2014 US Supreme Court decision that criticized this doctrine, many courts have given that defense the back of their judicial hands. These courts have ruled that tiny amounts of working time (e.g., five minutes), if performed on a routine basis, can be compensable when they are aggregated. Well, a recent case may have started the pendulum swinging the other way. The case is entitled Cadena v. Customer Connexx LLC,, and was filed in federal court in the District of Nevada.
In this case, the Judge granted summary judgment to the employer, dismissing the case. He found that the facts were such that the booting up/shutting down of computers by call center employees was compensable because the time was de minimis. The court also ruled, importantly, that where the amount of time taken proved longer than the few minutes, that time was compensable, and the employees were paid for the time.
The Judge noted that the employees themselves testified that the booting up process took a few seconds, or, at most, a couple of minutes. He decried the “[s]plit-second absurdities” that had been engrafted into these decisions and believed the FLSA did not support such hyper-technical findings. He held that clicking a few buttons or getting into a computer program took but little time and concluded that “the aggregate amount of compensable time to turn a computer on and off each day even over the course of many months” was not that much at all.
The plaintiffs urged the Court to gauge the time by the employee badge swipes in and out of the facility; the employees could enter the facility a half-hour before their shift start. The Court declined this invitation. The Court noted that although employees punched in “early,” that did not mean that they started working immediately when they entered. They could be drinking coffee or reading a newspaper to gossiping with other workers before they sat down and booted up. To further complicate matters, the employer would have had to investigate every instance of these badge swipes to determine if the workers were actually performing compensable work. That was far too burdensome. Tellingly, if the boot-up time took longer, employees could put in a request for payment, a fail-safe mechanism that the Court found decisive.
The Takeaway
Praise the day! The de minimis doctrine is not dead, but each case turns on its own facts. The doctrine will be applied differently to different sets of facts and employers will still have to make a showing that the actual time at issue was but a “fleeting” few moments. Then, the employer has to argue against aggregation. I think the biggest takeaway here is for employers to have that fail-safe mechanism, where employees can seek payment for lengthier periods of time for their preliminary/postliminary activities and make sure such a policy/procedure is disseminated to all affected employees.
Worth a shot…
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