One of the biggest computer annoyances is when your machine gets slow over time….The thing is, when you first get a new computer and boot it up it works lightning fast. That's because it doesn't have anything on it. 

—Kevin Smith, Business Insider, https://www.businessinsider.com/why-your-computer-slows-down-2013-8

It is not uncommon for the U.S. Department of Labor (“DOL”) to audit both private sector employers and government contractors and to seek extra monies for activities workers perform before the ostensible start of the work day. This is a common Fair Labor Standards Act (“FLSA”), Service Contract Act (“SCA”) and Davis-Bacon Act (“DBA”) issue. Particularly with call center employees and remote or virtual workers (i.e., those who work from home), who log into the company’s computer system, sign into the timekeeping software, download data bases and/or applications, and then get into a phone que or some other work related activity, there are invariably issues involving what is compensable working time. In the past, I have called this a “boot up time” issue.

My own view is that, in the right circumstances, log in/log off time, especially when paired with a remote timekeeping function, is arguably preliminary time under the Portal-to-Portal Act and is thus not compensable. It is also likely to be de minimis, i.e., less than 10 minutes in duration. And it may be subject to reasonable time keeping rounding policies. However, the U.S Department of Labor (“DOL”) doesn’t agree with me, and the many industry settlements suggest there is a significant risk that the login/logout time may be deemed working time.

Accordingly, unless you are prepared to fight with DOL or the plaintiff’s bar, we advise employers to consider adopting remedial measures going forward that will better capture at least portions of this boot-up time as hours worked and document them in the employer’s timekeeping system. In addition, we suggest employers review their payroll rounding of time policies, since a policy that results in rounding in each direction may also suffice. Or, alternatively, employers may consider adopting a “formula time” solution in which the employer would determine an average amount of time required to login and simply add that amount of time to all working hours.

If there is no timekeeping function whereby the employee logs in and out, then it is DOL’s position that job-related activities required as a part of an employee’s work are covered, even if they are performed before or after the employee’s specified work schedule. See, e.g., IBP, Inc. v. Alvarez, 126 S.Ct. 514 (2005) (introducing the notion that activities that are integral and indispensable to the employees’ work are compensable principal activities of the employee’s work for the employer). The issue according to DOL is likely whether the logon and logoff time spent by call center workers constitutes an activity that is so “integral and indispensable” that is indistinguishable from the principal activity that they are engaged to perform for the company. If logging on and logging off are deemed as integral and indispensable to the job by DOL, then the time spent is generally considered to be compensable working time, absent some other exception like logging in to a timekeeping system.

Accordingly, it is no surprise that DOL thinks such boot-up time is working time, and their views are generally given great weight and much deference, since DOL is the agency specifically charged by the Act with authority to interpret the law and promulgate wage and hour regulations. In addition, the FLSA, SCA and DBA are remedial laws meant to protect employees from exploitation by their employer, and they are interpreted with this remedial intent in mind. In light of this, DOL has put its own thumb on the scale here and has issued Fact Sheet # 64 that sets forth “general information concerning the application of the FLSA to employees working in call centers.” See DOL Fact Sheet #64: Call Centers under the Fair Labor Standards Act (FLSA), available at https://www.dol.gov/whd/regs/compliance/whdfs64.pdf. In it, the DOL identifies several “[t]ypical problems” including “hours worked.” Id. at 2. DOL takes the position that “the first principal activity of the day for agents/specialists/representatives working in call centers includes starting the computer to download work instructions, computer applications, and work-related emails.” Id. Thus, in DOL’s view, logging on and logging off tasks are compensable working time. This fact sheet is not a binding rule or controlling law, but it represents the DOL position and taking any contrary position thus involves some litigative risk.

Given DOL’s dogmatic view, we have counseled call center employers, and those with remote workers performing similar virtual activities from home, to adopt remedial measures, such as the ones described herein, to reduce the risk of claims going forward. Indeed, there are settlements of call center cases that can be found through simple google searches. No doubt most call center operations, when confronted by collective actions or a DOL investigation, simply decline to fight this issue to the end, and the disputes are settled. The consequences of losing the case (double damages, a three year statute of limitations, and payment of the company’s own and the plaintiff’s attorney’s fees, or if you are a government conractor then possible debarment) is usually enough of a risk to make a good (even multi-million dollar) settlement attractive. Most of the cases involving this “boot-up time” issue, thus, are settled.

That doesn’t mean DOL’s interpretation is right. In fact, it likely is not. But to explain why takes a treatise on the Portal-to-Portal Act, the case law, the application of the de minimis rule, and the application of the rounding of time policies. It is very fact intensive analysis, so consult with your counsel if you don’t intend to toe the DOL line.