More than 300 Nelnet Diversified Solutions LLC call center representatives (CCRs) were entitled to pay for time spent booting up their work computers and launching software before they arrived, the 10th Circuit Court of Appeals has ruled. the United States.
Nelnet is a student loan company that operates multiple call centers in Lincoln, Neb. ; Omaha, Neb. ; and Aurora, Colorado, where its employees handle student loans and interact with customers by phone and email. Nelnet CCRs were not exempt and paid once they clocked into the timing system at their individual workstations.
However, CCRs perform several pre-shift tasks before they can clock in. CCRs must first start their work computer. CCRs then insert their security badge into the computer and enter their credentials. The computer then automatically launches the specialized Citrix software, which in turn loads the JRC’s personal office and the Nelnet intranet. The intranet contains a link to the point system. Once the intranet is loaded, an employee has access to the clocking system and can, and almost always does, clock into the system and begin earning pay for hours worked.
The median time CCRs spend on these pre-shift activities, which varies across the three call centers, is approximately two minutes per shift.
A CCR filed a class action – which more than 350 people opted into – asking Nelnet to pay for the time he and other CCRs spent booting up their computers and launching software, arguing that these activities were compensable work that Nelnet had not paid them for. , in violation of the Fair Labor Standards Act.
The parties filed cross-motions for summary judgment on whether the pre-post activities were compensable labor and, if so, whether the time CCRs spent on these activities was so minimal that Nelnet did not didn’t have to compensate them for it.
The district court resolved the first issue in favor of CCRs, finding that the pre-shift activities were compensable. But it concluded that the time involved was too minimal to be compensable and therefore granted summary judgment to Nelnet. The CCRs appealed, arguing that the time in question is both compensable and not “de minimis”.
Nelnet then sought to recover some of its costs as the winning party. The district court awarded Nelnet approximately $58,000, including more than $33,000 in electronic discovery costs. CCRs appealed that decision, arguing that the district court erred in awarding the eDiscovery fee and filing the decision jointly and severally.
On appeal, the 10th Circuit again considered whether the small periods of time CCRs spent each morning waiting for their computers to boot up were de minimis. He considered three factors:
1. The practical administrative difficulty of recording overtime.
2. The size of the overall claim.
3. Whether the employees performed the work on a regular basis.
The 10th Circuit relied on the District Court’s acceptance of estimates provided by Nelnet’s expert, who calculated that the median time from badge swipe to clock-in was 1.6 minutes in Omaha, 2.2 minutes to Lincoln and 2.27 minutes to Aurora. The court thus considered that the time taken to start up and connect was not so small that it would be difficult to measure, since Nelnet’s expert was able to do so in the context of the dispute.
Regarding the size of the overall claim, the 10th Circuit cited the parties’ agreement that lost wages for all CCRs amounted to approximately $30,000. Each CCR would be entitled to approximately $2.40 per week, which equates to approximately $125 per year, and an aggregate claim of approximately $500 for the total period in question. The Court of Appeal held that this amount was sufficient to support a claim based on previous case law.
With respect to task regularity, the 10th Circuit found that this factor weighed heavily in favor of CCRs, as each CCR performs the same activities before each shift for approximately the same amount of time, depending on location.
For these reasons, the 10th Circuit reversed the district court’s award of summary judgment to Nelnet and the award of costs to Nelnet and remanded the case to the district court for further litigation.
Peterson vs. Nelnet Diversified Solutions LLC10th Cir., n° 19-1348 & 20-1217 (Oct. 8, 2021).
Professional pointer: Employers must compensate non-exempt employees from the start of their working day and include even minor delays in starting, unless they are unusual and very short.
Jeffrey Rhodes is an attorney at McInroy, Rigby & Rhodes LLP in Arlington, Virginia.