Tenth Circuit: Booting Up Computer is Compensable Work Time


All Employers with CO, KS, NM, OK, UT, and WY Employees


October 8, 2021


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In Peterson v. Nelnet Diversified Solutions, LLC, the Tenth Circuit Court of Appeal stated that employers must pay for regularly performed pre-shift activities that are integral and indispensable to the employees’ job duties. Even though employees spent an average of two minutes per shift on pre-shift activities, the court said that this time was not de minimis and was required to be compensated.

There, the employer did not pay call center employees for time spent booting up their work computers and launching certain software before they clocked in. In that context, the court said that the activities were integral and indispensable to the employees’ principal activities of servicing student loans by communicating and interacting with borrowers over the phone and by email, and therefore constituted compensable work under the Fair Labor Standards Act (FLSA).

Although the amount of compensation per employee or in the aggregate did not weigh in either party’s favor, the time spent was regularly performed and the employer had the ability to estimate the time spent based on the precise data it controlled (as evidenced by their own expert’s evidence) and even though the pre-shift activities were not tied to the employer’s time-keeping system. Further, the employer failed to establish the practical administrative difficulty of estimating the time at issue. As a result, the de minimis doctrine did not apply to excuse the employer’s obligation to pay its employees for their work.

Action Items

  1. Review pre- and post-work activities to ensure proper compensation.
  2. Determine how to capture or estimate compensable activities.
  3. Consult with legal counsel for historical corrections, if any.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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