In this post—our third in a series on wage-and-hour issues in the 21st Century—we focus on the tools of the trade, so to speak. It is important to understand what counts as “hours worked” and what may or may not count, to ensure that all compensable time is being recorded and paid. This is often more difficult than it may seem and can involve some sticky questions about computers and other equipment now common in the workplace.
When non-exempt employees arrive at work, they must often take preliminary steps with equipment so that they can perform their jobs. For example, they may set up, layout, turn on, prepare, or test computers, equipment, or other tools of their job. These activities almost always count as time worked (or a plaintiff’s lawyer will claim that they do) or as “principal activities” that primarily benefit the employer.
A number of different courts have found these examples of preliminary activities are really principal activities and therefore are compensable:
Turning on switches for lights and machinery
Powering up and testing an x-ray machine integral to taking x-rays
Garment workers who arrive early to distribute clothing to work benches or to get machines ready for operation
Why this is particularly important is because once employees engage in such activities, the workday has started. And under the continuous workday rule, any subsequent walking, waiting, or other time generally must be counted as time worked.
The U.S. Department of Labor (DOL) is and has been focusing on the time spent by employees turning on computers and pulling up computer applications, especially in certain work environments. If employees turn computers on and then spend time sitting there waiting or visiting with co-workers while computer applications boot up, the DOL thinks that all such time is compensable under the continuous workday rule. If employees log into a time recording system after these initial activities, some argue that an employer could be systemically missing the first several minutes of its employees’ work time every day. The DOL takes the position that during this waiting time employees are actually “engaged to wait” for their computers to boot up and their work applications to load. Thus, the time is compensable.
Employers need to be certain that their time recording systems are capable of capturing all work time, including time spent turning on computers and shutting down applications at the end of the work day. Ponder this question: If an employee regularly and predictably spends seven to eight minutes a day waiting for a computer to boot up so that he or she can log into the timekeeping system, does that time—which arguably amounts to more than 30 minutes a week—constitute compensable work time? Would you feel comfortable arguing that that amount of time, which occurs on a daily basis, is de minimis?
There has also been a rise in private litigation over this very issue. A lack of concise written policies and properly trained managers can result in expensive and time-consuming off-the-clock claims. And these claims can become especially expensive to defend because it is often the case that where one employee claims an off-the-clock violation, other employees are in a same or similar situation.
Stay tuned for our next post in this series—the fourth—where we will address “Recent DOL Activities to Combat Off-The-Clock Work Violations.”
Cynthia A. Bremer is a shareholder in the Minneapolis office of Ogletree Deakins, and Charles E. McDonald, III is a shareholder in the Greenville office of Ogletree Deakins.