Compensable Work Time… What is the Standard?

A recent court case has addressed the issue of compensable work time and demonstrates the new complexities involved in determining whether employees are properly paid when working at home or on a remote basis.  When employees work in factories or in regular offices, the determination as to when an employee’s work day begins is easy – the day begins when the employee clocks in on a time clock, their computer, or some other timekeeping device.  When an employee works remotely – typically from home – the question becomes a bit more difficult.  There is no time clock or supervisor that can determine whether an employee is actually working when they say they are and the employee may be distracted by their home environment. 

In addressing what constitutes compensable work time, the courts have developed two standards.  The first addresses the timing of the activities – whether they are preliminary and completed before the employee begins work or whether they are postliminary and occur at the end of the employee’s workday.  The most ubiquitous example of preliminary and postliminary activities is the donning and doffing rule.  This rule basically states that an employee who chooses to change into their uniform at the worksite, rather than at home, is not performing compensable work.  Over the years, this rule has been further developed to determine whether an employee is able to wear their uniform from home or is limited to donning a uniform and the related safety equipment at the employer’s workplace.  When the employee is not able to exercise the option of where to change into their work clothes, the conclusion is that the putting on of the uniform is compensable work time.

In reaching this conclusion, courts have concluded that changing into a work uniform and any personal protective equipment can be integral and indispensable to the employee’s job performance.  The courts have highlighted the following factors as essential to making this determination as to whether the activities are integral to the employee’s work:

1. Location. Does the worker change before or after crossing “the workplace threshold”? If the changing typically takes place at the worksite and there is no “meaningful option” for workers to change at home, then “changing is more likely to be integral to the work.”

• Regulations. Donning and doffing protective gear are more likely integral to workers’ principal activity when specific regulations mandate its use.

• Type of gear. The more specialized the gear, the more likely changing in and out of it is integral. However, even “generic gear” can be intrinsic to workers’ principal activity and should not be categorically ruled out. 

The question of whether the activity is indispensable to the employee’s work is based, according to the courts, on the question of whether the employee can safely and effectively perform the work without changing into the protective gear. 

While the determination of integral and indispensable activities is fairly easy to make, the question of integral and indispensable activities is less clear when dealing with employees who are working from home on jobs that do not require safety equipment or uniforms, but do require extensive computer or office equipment use.  The difficulty of this determination is evidenced by a recent split in the Circuit Courts of Appeals regarding wage and hour lawsuits filed by office workers who work remotely from home.  This split was highlighted in a 2025 case, Lott v. Recker Consulting, where a group of employees who worked from home filed suit in a federal court in Ohio, seeking pay under the Fair Labor Standards Act and Ohio wage-hour law for time spent booting up and logging into their computers at the start of the day, booting up and logging in after their meal breaks and shutting down their computersat the end of the day.  The defendants in the case filed a motion for summary judgment arguing that those activities constituted preliminary and postliminary activities and were not compensable.  The court partially granted the motion, largely agreeing with defendants, and held that many of the activities involved in the boot-up and login or logout processes are “preliminary or postliminary,” making them noncompensable under the FLSA.  The Court, however, also found that some activities, such as the opening and operating of any applications the employees primarily work in or use throughout the workday in connection with answering or handing such inbound calls, are integral and indispensable for the employee in performing their work and are compensable.

The court’s decision in Lott, which is applicable in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee), provides employers with the ability to reject an employee’s claims for compensation for the turning on and shutting down of computers that is not integral or indispensable to the employee’s work.  The Ninth and Tenth Circuits, however, have held that the booting up, logging on, and turning off of the computer and all time in between is compensable work time and must be paid as such. This split in the courts creates a difficulty for employers who have workers in the Sixth Circuit and the Ninth and Tenth Circuits, because the rules differ and the only way that an employer can avoid a wage claim is to have a policy that meets the more stringent requirements of the Ninth and Tenth Circuit.  myHRcounsel can assist you in ensuring that your policies are up to date, legally compliant, and proactive.  The everchanging and evolving nature of labor and employment law requires employers to stay abreast of these changes and myHRcounsel is a great tool to do that.