For many industries, working on a computer is integral to getting things done. Sometimes, technology can be slow – causing delays for both employees and employers. Some employers have taken the approach that waiting for equipment to start/launch does not constitute “work” – and, therefore, should not be paid. However, a recent decision from the Tenth Circuit clarifies that compensating employees for time spent waiting on a computer to start is required.

In Peterson v. Nelnet Diversified Solutions, LLC, 300 call center employees sued their employer for compensation for time worked under the Fair Labor Standards Act (FLSA), including the time that they spent waiting for their computers to “boot up” at the start of their shift. The employer contended that they were not required to pay for the time spent waiting – as it did not constitute work. However, the Tenth Circuit disagreed, applying the FLSA “de minimis” test.

The FLSA de minimis test provides that “off the clock” work does not need to be compensated if it meets a 3-factor test: (1) there must be practical administrative difficulties in precisely recording the time for payroll purposes; (2) the time worked must consist of “uncertain and indefinite periods of time involved of a few seconds or minutes duration”; and (3) An employer may “not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”

The Tenth Circuit in the Peterson case determined that the time spent waiting for a computer to start could easily be tracked – and therefore needed to be paid. I recommend that employers take note of this decision in determining how to “count” employees’ time worked for purpose of paid time/overtime. A failure to properly compensate an employee can result in a class action (like the Peterson case) as well as significant damages and attorney’s fees. Proactively determining whether time should be paid can preempt significant liability.

Feel free to reach out to me to discuss.