Must employees be paid for time spent prepping for the workday?
Many employers have employees who must arrive at work before their official start times to get their workstations ready. For example, a call center employee who works from 9 a.m. to 5 p.m. may need to arrive at work in the morning with enough time to boot up a computer, log in to company systems, and otherwise be ready to take the first call at 9 a.m. so that he or she will be considered “on time” per the company’s rules.
Must the time spent preparing to start working at 9 a.m. be paid? Many employees have recently taken issues like this one to court to try to recover wages not paid during these types of activities.
For an employee to seek recovery for work performed before or after his or her regularly scheduled working time, he or she must show that the work is indispensable to the principal work activity. However, the employee must also show that the amount of time spent on these indispensable tasks before or after work is not so brief that they would be considered de minimis under the Fair Labor Standards Act and could therefore be excluded from paid time.
What is considered ‘de minimis’?
When determining whether time spent performing tasks like starting up a computer and signing into software is de minimis, courts typically consider three factors:
- The administrative difficulty involved in recording the additional time
- The aggregate amount of time spent
- The regularity with which additional work is performed
If additional work is not performed with some regularity, it is likely to be considered de minimis. So if an employee only has to arrive a few minutes early once or twice a month to have his or her equipment booted up for a 9 a.m. call, a court likely wouldn’t rule in favor of a claim for back wages.
Ten minutes or less?
As for the amount of time employees spend on such tasks, courts have generally considered such time to be de minimis if it constitutes 10 minutes or less per day. (Ten minutes in the morning and 10 minutes in the afternoon would not be considered de minimis.)
However, the regulations specifically say that only such periods of time that “cannot as a practical administrative matter be precisely recorded for payroll purposes” (§785.47) are de minimis, and some courts have more closely upheld this stricter standard, indicating that any working time that can be tracked should be paid.
This stricter stance was held by the U.S. District Court for the Western District of Wisconsin in Spoerle, et al. v. Kraft Foods Global (2007). According to the court: “When providing compensation for a task imposes no additional burden on the employer, there is no justification for denying the employee compensation for that task, regardless of how fast the task was performed. … After all, many jobs could be divided up into tasks that take only a few minutes apiece.”
Thus, while employers may consider the 10-minutes-or-less guideline that many courts have implemented, they must remain aware that individual courts may not subscribe to that benchmark.
It does seem clear, however, that any time spent beyond 10 minutes per day on before- or after-work activities must be paid. However, beyond following the trends of courts in the company’s particular area and making an informed decision, employers may be safest by tracking (and paying for) any time that employees spend working on the company’s behalf, particularly if it is work that is regularly completed and not administratively difficult to track.
Katie Loehrke is a human resources subject matter expert and editor with J.J. Keller & Associates, Inc. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter.
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