I’m hitting this technology theme hard this week.
And why shouldn’t I?!? We’ve got a banger edition of The Employer Handbook Zoom Office Happy Hour set for Noon ET on Friday, November 4, 2022. Along with a team of cyber-risk, privacy, and data security attorneys from FisherBroyles, we will present Cybersecurity 101 for HR Professionals and Employment Lawyers.
But today, I want to talk about something much more mundane than phishing and other cyber threats.
Like turning on a computer at work.
When you think about the simple task of employees powering on and booting up their computers, you’re probably not considering the Fair Labor Standards Act. After all, it should only take a few seconds. And while the FLSA does generally require employers to compensate non-exempt employees for time spent working, there is an exception for insignificant (quick) tasks.
Plus, the employer must know (or have reason to know) that employees are spending extra time powering on and booting up their computers. Until we invent mindreading technology, where an employer does not know that employees are working, and the employees fail to notify the employer or deliberately prevent the employer from learning about the work, the employer doesn’t violate the FLSA if it fails to pay the employees for this unreported, unknown time worked.
But, putting aside the knowledge component and the “de minimis” exception, how is turning on a computer considered working?
According to this recent opinion from the Ninth Circuit Court of Appeals, it all comes down to whether employees turning on the computers are integral and indispensable to the workers’ duties and was a principal activity under the FLSA.
In plain English, can workers perform their jobs without turning on and booting up their work computers? If the answer is no, then the time spent waiting for the computer to power up is technically compensable.
So, let’s put it all together.
- Employees perform “integral and indispensable” duties.
- The time spent working is not insignificant.
- Employers know about the time worked.