July 11 Tip of the Week

“Booting Up:  The New Donning and Doffing”

Anyone familiar with the Fair Labor Standards Act and the line of cases and decisions related to preliminary work activities will remember the terms “donning and doffing.”  In 2005, the United States Supreme Court issued a ruling involving class action suits against two food processing companies.  In those cases, the employees sued under the Fair Labor Standards Act claiming that the time they spent “donning and doffing” their personal protective gear should be counted as time worked and they should be paid for that time.  The Supreme Court agreed with the plaintiffs and found that the putting on of personal protective equipment was “an integral or indispensable part” of the employees’ principal activity and was, thus, compensable under the Act. 

Fast forward almost 20 years later and a new version of “donning and doffing” has entered the employment law scene.  This new version of a preliminary activity is particularly relevant in today’s workplace where the move to remote work has become more prevalent as a result of the pandemic.  In October 2021, the Tenth Circuit Court of Appeals issued a ruling finding the time spent in booting up a computer and loading software is an integral and indispensable activity for call center employees who work from home. The employees in question were call center representatives for a student loan servicing company.  In reaching its decision, the court rejected the company’s argument that the time spent in booting up the computer and loading the software was de minimis and akin to punching a time clock at a job site.  The court found, instead, that the principal activity for which the employees were hired – servicing student loan holders by telephone or email – could not be conducted without these activities being completed and, thus, was compensable.  See, Peterson v. Nelnet Diversified Sols., — F.4th —, 2021 U.S. App. LEXIS 30273 (10th Cir. Oct. 8, 2021).

This decision serves as a reminder to employers that they are vulnerable to wage and hour claims when dealing with an hourly remote workforce.  The Fair Labor Standards Act requires an employer to pay an employee for any time they are “suffered or permitted to work” on behalf of the employer and, when an employee works offsite or remotely, it is difficult for employers to monitor and/or control the work that is performed.  Further, an employee is entitled to be paid when they are engaged to wait (think of a firefighter who is waiting for a fire call).  An employee who works from home often has a blurred workday – they often do not punch a time clock, there is no set end to their workday, and, for service center employees, they are waiting for inquiries to be made so that they can respond.  This makes it difficult for an employer to determine what actually constitutes compensable work time for these remote employees.     

Employees who work from home and feel that they are not being properly compensated for their time or who become isolated are prime targets for the labor and employment law attorneys seeking to file class action suits against an employer.  These cases are lucrative for plaintiff’s attorneys and the standards applied to wage and hour issues are very employee friendly.  When dealing with pay issues and the question of time worked, an employee’s accounting of their time worked is given a great deal of credibility by the courts.  It is up to the employer to have concrete evidence to combat the employee’s claims.  And, remember, an employer must pay an employee for time worked, regardless of whether the time or the work was approved in advance or not – a fact that is particularly important when considering an employee’s claim for overtime pay. 

What does this mean for employers?  Clear and accurate records of work time are an essential part of an employer’s defense to claims for unpaid wages.  Employers should invest in an effective time keeping system that allows them to track when an employee is working; this is particularly true with remote workers, where there is no supervisor to monitor an employee’s work hours and productivity.  Employees should be given specific work hours and be informed that they are not to exceed those hours without specific and advance approval.  Finally, a clear and concise time keeping and work hour policy should be implemented and disseminated by employers. 

Employers should also ensure that they have regular check ins with their remote employees.  These points of contact with this group of employees maintains a positive relationship and affirms the employee’s value to the organization.  Employees who feel as though they are being recognized and rewarded for their contributions are less likely to file lawsuits against their employer.  At myHRcounsel, we can assist you in developing the tools to defend yourself against these types of wage and hour claims