CARIENE CADENA V. CUSTOMER CONNEXX LLC ( 2022 )

FILED
FOR PUBLICATION
OCT 24 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARIENE CADENA; ANDREW No. 21-16522
GONZALES, on behalf of themselves and
all others similarly situated, D.C. No.
2:18-cv-00233-APG-DJA
Plaintiffs-Appellants,
v. OPINION
CUSTOMER CONNEXX LLC; JANONE,
INC.; DOES, 1 through 50, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted June 14, 2022
San Francisco, California
Before: Jay S. Bybee, Consuelo M. Callahan, and Daniel P. Collins, Circuit
Judges.
Opinion by Judge Bybee
SUMMARY *
Labor Law
The panel reversed the district court’s summary judgment in favor of defendant
Customer Connexx LLC and remanded for further proceedings in a collective action
brought under the Fair Labor Standards Act by call center workers.
The workers provided customer service and scheduling to customers over a “soft
phone,” operated only through their employer-provided computers. They alleged
that their time booting up and shutting down their computers was an integral and
indispensable part of their principal duties, making the time compensable under the
FLSA, as amended by the Portal-to-Portal Act.
The panel concluded that the district court correctly identified the workers’
principal duties as answering customer phone calls and scheduling appliance
pickups. Agreeing with the Tenth Circuit, the panel held that the workers’ duties
could not be performed without turning on and booting up their work computers,
and having a functioning computer was necessary before the workers could receive
calls and schedule appointments. Accordingly, turning on the computers was
integral and indispensable to the workers’ duties and was a principal activity under
the FLSA. It therefore was compensable.
The panel reversed the district court’s summary judgment on the FLSA claim and
remanded to the district court for consideration of whether time spent shutting down
computers was compensable, whether the time spent booting up and down the
computers was not compensable under the de minimis doctrine, and whether
Connexx had no knowledge of the alleged overtime such that it was not in violation
of the FLSA’s overtime requirements.
*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
COUNSEL
Joshua D. Buck (argued), Mark R. Thierman, and Leah L. Jones, Thierman Buck
LLP, Reno, Nevada, for Plaintiffs-Appellants.
Veronica T. Hunter (argued) and Paul T. Trimmer, Jackson Lewis PC, Las Vegas,
Nevada, for Defendants-Appellees.
Frances Y. Ma (argued), Attorney; Rachel Goldberg, Counsel for Appellate
Litigation; Jennifer S. Brand, Associate Solicitor; Seema Nanda, Solicitor of Labor;
United States Department of Labor, Office of the Solicitor, Washington, D.C.; for
Amicus Curiae Secretary of Labor.
BYBEE, Circuit Judge:
Plaintiffs-Appellants Cariene Cadena and similarly situated employees
(Appellants) are employed by Customer Connexx LLC (Connexx) to operate a call
center in Las Vegas, Nevada. Appellants’ primary responsibilities are to provide
customer service and scheduling to customers over a “soft phone,” operated only
through their employer-provided computers. We are asked to determine whether
their time booting up and shutting down their computers is an integral and
indispensable part of their principal duties, making the time compensable under the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201–19. The district court granted
summary judgment for Connexx. We reverse and remand for further proceedings.1
I. BACKGROUND
Connexx, a wholly owned subsidiary of JanOne Inc., operates a call center
in Las Vegas, Nevada that provides customer service and scheduling for an
appliance recycling business. Appellants work in-person at the call center in a
variety of hourly-paid, non-exempt positions, including as call center agents whose
primary responsibilities are to provide customer service and scheduling functions
1
Our holding is limited to the facts presented in this case—that is,
Appellants using employer-provided computers to perform their duties while
working at a central work site. We are not asked to consider, and offer no opinion
on, whether the same time would be compensable under the FLSA if Appellants
worked remotely or used their personal computers to perform these duties.
2
for customers over the phone.2 Like many employers, Connexx has a policy
prohibiting “off the clock” work and requires hourly employees to record their
actual hours worked each day. Employees clock in and out using a computer-
based timekeeping program, which they must do before accessing other job-
relevant programs. To reach the timekeeping program, employees must awaken or
turn on their computers, log in using a username and password, and open up the
timekeeping system. Appellants are not assigned to a particular computer and they
testified that, depending on the age of the computer and whether the computer was
off or in sleep mode, it would take anywhere from a minute to twenty minutes for
the computer to boot-up so they could clock in. Appellants estimate the average
boot up time is between 6.8 to 12.1 minutes. Connexx allows employees to correct
inaccuracies in their timecards that occur due to technical issues using a “punch
claim form.”
Once clocked in, Appellants load various programs and scripts and confirm
that their phone is connected and ready to accept calls. Connexx agents use a
phone program called “Five9,” an application that operates through employees’
2
Appellants include the two named plaintiffs, Cariene Cadena and Andrew
Gonzales, and fifteen opt-in plaintiffs who, after receiving notice of the
conditionally certified FLSA collective action, executed consent forms to join the
collective action.
3
computers rather than through a physical phone. At the end of their shift,
employees wrap up any calls they are on, close out of job-relevant programs, clock
out, and then log off or shut down their computers.3 Connexx employees gave
varied accounts of how long it took to log off of their computers, ranging from less
than a minute to fifteen minutes, and Appellants estimate it took an average of 4.75
to 7.75 minutes to log off and boot down the computers.
Appellants filed suit in Nevada state court on behalf of themselves and
similarly situated employees alleging violations of the overtime provisions of the
FLSA and Nevada law. They contend that they were not
paid for the time spent booting up their computers prior to clocking in to the
electronic timekeeping system or closing down their computers after clocking out
of the timekeeping program. Defendants removed the case to federal court.
The district court conditionally certified the FLSA collective action and
notice was sent to putative collective action members, resulting in fifteen opt-in
3
Appellants allege that employees were instructed “to make sure that [their]
computer[s] [are] completely shut down.” Connexx claims that employees were
never instructed to turn off their computers and presented testimony from various
employees that it was a personal preference to shut their computer down all the
way and that most people would leave after logging out without waiting for the
computer to shut down. However, other employees testified that they were advised
or instructed to shut down their computers all the way. Because Connexx filed for
summary judgment, we will assume for purposes of this appeal that employees
were instructed to shut down their computers at the end of their shift.
4
plaintiffs currently in the suit. Connexx moved to decertify the FLSA collective
action and for summary judgment on the FLSA claim. The district court granted
summary judgment to Defendants, holding that “[s]tarting and turning off
computers and clocking in and out of a timekeeping system are not principal
activities” because Connexx did not hire employees for that purpose, but “to
answer customer phone calls and perform scheduling tasks.” The district court
noted that Connexx “could dispense with the electronic timekeeping method and
the employees could still perform their work.” The court compared booting up to
“the electronic equivalent of waiting in line to clock in or out of a physical
timeclock, which is non-compensable.” The court concluded that those tasks “are
not integral and indispensable to the employees’ duties as call center customer
service agents.” Having disposed of the FLSA claim, the district court declined to
exercise supplemental jurisdiction and remanded the state law claims to state court.
The district court denied Appellants’ motion for reconsideration.
Appellants timely filed a notice of appeal. The United States Department of
Labor (DOL) filed an amicus brief in support of Appellants.
II. STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We “review a district court’s
grant of summary judgment de novo, and may affirm on any basis supported by the
5
record.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009) (citing
Burrell v. McIlroy, 464 F.3d 853, 855 (9th Cir. 2006)). “Our review is governed
by the same standard used by the trial court under Federal Rule of Civil Procedure
56.” Id. (citing Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999)).
“Viewing the evidence in the light most favorable to the nonmoving party, we must
determine whether there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.” Id. (quoting
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc)).
“Whether an activity is excluded from hours worked under the FLSA, as
amended by the Portal-to-Portal Act, is a mixed question of law and fact.” Ballaris
v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004). “The nature of the
employees’ duties is a question of fact, and the application of the FLSA to those
duties is a question of law.” Id.III. DISCUSSION
Appellants have raised a single issue for our review: Whether Appellants’
time spent booting up and shutting down their computers, through which they
access their phone and customer service programs, is an integral and indispensable
part of their duties and thus compensable under the FLSA. We will begin with
important background on the FLSA, including the Portal-to-Portal Act, which
6
amended the FLSA; DOL regulations; and the relevant jurisprudence. We will
then apply those standards to Connexx’s call center employees.
A. The Fair Labor Standards Act
Enacted in 1938, the FLSA requires employers to pay employees one and
one-half times their regular pay for any time worked over forty hours per
workweek. 29 U.S.C. § 207. In 1946, the Supreme Court held that “the statutory
workweek includes all time during which an employee is necessarily required to be
on the employer’s premises, on duty or at a prescribed workplace.” Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946). The Court’s interpretation
in Mt. Clemens extended to preliminary activities like “walking to work on the
employer’s premises,” “putting on aprons and overalls,” and “turning on switches
for lights and machinery.” Id. at 691–93.
In response, in 1947 Congress passed the Portal-to-Portal Act, 29 U.S.C.
§§ 251–62, to correct the “unexpected liabilities” created by the FLSA being
“interpreted judicially in disregard of long-established customs, practices, and
contracts between employers and employees.” Id. § 251(a). The Act provided that
no employer shall be subject to any liability or punishment under the
[FLSA] . . . on account of the failure of such employer to pay an
employee minimum wages, or to pay an employee overtime
compensation, for or on account of any of the following activities
...—
7
(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said
principal activity or activities,
which occur either prior to the time on any particular workday at
which such employee commences, or subsequent to the time on any
particular workday at which he ceases, such principal activity or
activities.
Id. § 254(a).
In the wake of the Portal-to-Portal Act, the Supreme Court revised its prior
understanding of the FLSA and held that “activities performed either before or
after the regular work shift . . . are compensable . . . if those activities are an
integral and indispensable part of the principal activities for which covered
workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956). Activities
that are “integral and indispensable” are themselves treated as “principal activities”
under the Portal-to-Portal Act. See IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005).
The first principal activity of the day begins the workday and “any [waiting] time
that occurs after the beginning of the employee’s first principal activity and before
the end of the employee’s last principal activity . . . is covered by the FLSA.” Id.;
see 29 C.F.R. § 790.8(a) (interpreting “‘principal’ activities” as the activities an
employee is “employed to perform”); id. § 790.7(b) (“‘preliminary activity’
8
mean[s] an activity engaged in by an employee before the commencement of his
‘principal’ activity or activities”). The Portal-to-Portal Act did not change earlier
interpretations of the term “work,” see IBP, 546 U.S. at 28, which the Court
defined as “physical or mental exertion (whether burdensome or not) controlled or
required by the employer and pursued necessarily and primarily for the benefit of
the employer and his business,” Tennessee Coal, Iron & R.R. Co. v. Muscoda Loc.
No. 123, 321 U.S. 590, 598 (1944); see 29 C.F.R. § 790.6(b) (defining “workday”
as “the period between the commencement and completion on the same workday
of an employee’s principal activity or activities[,] . . . includ[ing] all time within
that period whether or not the employee engages in work throughout all of that
period”).
The “integral and indispensable test is tied to the productive work that the
employee is employed to perform” and does not include all activities an employer
requires. Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 36 (2014). “An
activity is therefore integral and indispensable to the principal activities that an
employee is employed to perform if it is an intrinsic element of those activities and
one with which the employee cannot dispense if he is to perform his principal
activities.” Id. at 33. Applying these standards, the Court has held that preparation
of equipment necessary to perform principal activities is compensable. See
9
Steiner, 350 U.S. at 256 (time spent changing clothes at beginning of a shift and
showering after at a battery factory was indispensable because workers were
exposed to toxic dust); Mitchell v. King Packing Co., 350 U.S. 260, 263 (1956)
(pre-shift knife sharpening was integral and indispensable to the jobs of
“knifemen” employed to butcher animals at a meatpacking plant); see also 29
C.F.R. § 785.24 (providing examples of tasks that are compensable under the
integral and indispensable test). DOL regulations provide other examples of
compensable preparatory time. 29 C.F.R. § 790.8(b)(1) (stating that a lathe
operator’s time spent oiling, greasing, or cleaning his machine, or installing a new
cutting tool, is compensable); id. § 790.8(b)(2) (stating that a garment worker, who
is required to report early to distribute clothing at the work-benches of other
employees or get machines ready for operation by others, similarly must be paid
for that time).
In contrast, the Court has said that time spent waiting to perform the first
principal activity of the day is ordinarily not compensable. See IBP, 546 U.S. at40–42 (holding the time spent waiting to don protective equipment, as the first
principal activity of the day, is not compensable); 29 C.F.R. § 785.24 (“[A]ctivities
such as checking in and out and waiting in line to do so would not ordinarily be
regarded as integral parts of the principal activity or activities.”). And in Integrity
10
Staffing Solutions, the Court found that Amazon warehouse employees who were
required to undergo security screening before leaving the warehouse were not
entitled to compensation because the screening was not “an intrinsic element” of
the job the employees were employed to perform—retrieving products from
shelves and packaging them for shipment. 574 U.S. at 29–30, 35. The Court made
clear that the integral and indispensable test does not encompass all activities that
are required by the employer. Id. at 36. But it does encompass those activities that
the employee is employed to perform. Id. at 37.
B. Whether Booting Up and Down Employees’ Computers Is Integral and
Indispensable to Their Principal Duties
To determine whether booting up and down the computers is compensable
under the FLSA, we must first identify the employees’ principal duties—that is, the
work that they are employed to perform. The parties do not dispute the nature of
the employees’ duties and the district court correctly identified employees’
principal duties as “answer[ing] customer phone calls and perform[ing] scheduling
tasks.”
The manner in which employees perform these duties is relevant. Connexx
operates a physical call center with numerous computer workstations on a single
floor. Employees are not assigned to any particular computer, so they select a
11
workstation when they arrive on a “first come, first serve” basis. Based on whether
the employee who used that computer last shut down the computer or left it in
sleep mode, the employees either fully turn on the computer or wake the computer
from sleep mode. Employees enter their credentials to log in and then are able to
load the electronic timekeeping program and clock in. Employees accept customer
calls through the “Five9” program. Five9 is a “soft phone” which allows
employees to receive customer calls through their computers. There is no
hardware, other than the computer running the program, needed to accept customer
calls. Employees also load scripts through the Five9 program that correspond to
the specific utility program for which Connexx is providing scheduling services.
As necessary, employees may also load programs like Microsoft Excel and Office
365.
The key question is whether turning on and off the computers is integral and
indispensable to the employees’ principal activities of receiving customer phone
calls and scheduling appliance pickups. If it is, turning on the computer itself is a
principal activity, see IBP, 546 U.S. at 37 (“[A]ny activity that is ‘integral and
indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ ”), and the time
spent waiting for the boot up process is a part of the continuous workday, see id.(“[D]uring a continuous workday, any [waiting] time that occurs after the
12
beginning of the employee’s first principal activity and before the end of the
employee’s last principal activity . . . is covered by the FLSA.”). If turning on the
computer is not integral and indispensable, it is outside of the continuous workday
and non-compensable. See id.; see also 29 C.F.R. § 790.7(b) (“‘[P]reliminary
activity’ mean[s] an activity engaged in by an employee before the commencement
of his ‘principal’ activity or activities . . . .”). Here, the employees’ duties cannot
be performed without turning on and booting up their work computers, and having
a functioning computer is necessary before employees can receive calls and
schedule appointments. Accordingly, turning on the computers is integral and
indispensable to the employees’ duties and is a principal activity under the FLSA.4
The district court concluded that “[s]tarting and turning off computers and
clocking in and out of a timekeeping system are not principal activities because
[Connexx] did not hire its customer service agents to turn computers on and off or
4
Our analysis and conclusion here is limited to whether booting up the
computers is compensable because the task is integral and indispensable to the
employees’ duties and therefore a principal activity under the FLSA. Because
shutting down the computers is not integral and indispensable to the employees’
ability to conduct calls, it is not compensable under this theory. Time spent
shutting down the computers may be compensable if the task is determined to be a
principal activity in and of itself. As previously noted, the parties dispute whether
employees were instructed to shut down their computers at the end of their shifts.
See supra n.2. We leave to the district court on remand to determine whether
shutting down the computers is compensable under any circumstances.
13
to clock in and out of a timekeeping system.” In our view, the district court erred
in characterizing the inquiry. The district court asked whether “engaging with a
computer and loading a timekeeping program to clock in” is integral to the
employees’ duties. We acknowledge that clocking in may not be integral to the
tasks for which the employees were hired and could be accomplished by other
means, such as the traditional time clock or a time sheet. We think the correct
inquiry is whether engaging the computer, which contains the phone program,
scripts, customer information, and email programs, is integral to the employees’
duties. That is, we should evaluate the importance of booting up the computer to
the employees’ primary duties of answering calls and scheduling rather than to
their need to clock in using the electronic timekeeping system.
When the employees’ duties are understood in this way, the electronic
timekeeping system becomes a red herring. It is a convenience to the employer.5
It has no impact on the “integral and indispensable” analysis except to show us
5
The district court analogized boot up time to waiting in line to clock in.
The comparison is not appropriate. If there is an analogy to be made to waiting in
line to clock in, it would be the time it takes the computer to pull up the
timekeeping program once an employee has booted up the computer. Our holding
does not, as Connexx suggests, effectively prohibit employers from using
computer timekeeping programs or contradict DOL regulations implying that no
specific form of timekeeping is required. See 29 C.F.R. § 785.48 (“Time clocks
are not required.”).
14
when Connexx began counting the employees’ time. The district court erred by
analyzing logging in to a computer in order to clock in to the timekeeping system
as one act and then concluding that the employees could perform their work
without clocking in. When framed correctly, the answer to the question—whether
booting up the computers is integral and indispensable to the employees’ customer
service duties—is clear. All of the employees’ principal duties require the use of a
functional computer, so turning on or waking up their computers at the beginning
of their shifts is integral and indispensable to their principal activities. Because
clocking in to the timekeeping program occurs after booting up the computer—the
first principal activity of the day—it is compensable. See IBP, 546 U.S. at 37.
We recognize that not all activities an employer requires as a part of an
employee’s duties are compensable. See Integrity Staffing Sols., 574 U.S. at 36
(warning that treating all employer-required activities as integral and indispensable
is overbroad). But when, as here, the required activity bears such a close
relationship to the employees’ principal duties that employees cannot eliminate the
required activity and still perform their principal duties, the activity is
compensable. Unlike in Integrity Staffing Solutions, where the employer could do
away with security screening without impairing the warehouse employees’ ability
15
to retrieve and package products, Connexx call center employees cannot perform
their principal duties without first booting up their computers.
The Tenth Circuit recently reached the same conclusion when faced with a
similar claim from call center representatives. In Peterson v. Nelnet Diversified
Solutions, LLC, 15 F.4th 1033 (10th Cir. 2021), the employees’ principal
responsibilities were to “service student loans and interact with debtors over the
phone and through email.” Id. at 1035–36. Before clocking in to an electronic
timekeeping system, each employee had to wake up her work computer, enter her
credentials, and load the desktop and the company’s intranet system, which
contained the link to clock in. Id. at 1036. The median amount of time spent on
boot up was “approximately two minutes per shift.” Id. The district court found
the time was compensable but concluded that it was de minimis. Id. On appeal,
the Tenth Circuit affirmed that the time was compensable but reversed on the
applicability of the de minimis doctrine, holding that the regularity and absence of
administrative difficulty in recording the time made it compensable. Id. at 1049.
In so holding, the court found an “obvious connection between the computers and
software programs and the work the [call center representatives] are employed to
perform” and because “the data and tools necessary to [perform the employees’]
principal duties exist on the computer,” booting up the computer is integral and
16
indispensable to their duties. Id. at 1041–42. The Tenth Circuit also concluded
that “turning on a computer, entering passwords, and launching software is not
analogous to waiting in line to punch a clock, particularly when—very much
unlike a time clock—the computer itself is an integral tool for the work the
individual is employed to perform.” Id. at 1041.
Connexx argues that Peterson is distinguishable because the call center
employees there were all required to perform “several preshift tasks before they
clocked in” including booting up the computer and loading relevant programs,
whereas here, as soon as the computer is turned on, the employees can access the
timekeeping system. Connexx’s proffered differences do not hold up. While the
employees in Peterson did have to enter their badge or credentials and the
company’s intranet system was automatically launched before the link to the
timekeeping software appeared, see id. at 1036, this is not fundamentally different
from the process to which Connexx employees have testified. Connexx employees
have to turn on or wake up their computers, enter their login credentials, and wait
for their desktop to load, before they can launch their timekeeping software and
clock in.
Because Appellants cannot perform their principal duties—receiving
customer calls and scheduling—without a functional computer, booting up their
17
computers at the beginning of their shifts is integral and indispensable and
therefore compensable under the FLSA.
C. Alternative Grounds for Affirmance
Connexx urges us to affirm on two alternative grounds. First, Connexx
argues that we should affirm because even if the boot up time is not preliminary, it
is non-compensable under the de minimis doctrine. The de minimis doctrine is not
codified in the FLSA, but has its origins in the Court’s pre-Portal-to-Portal Act
decision in Mt. Clemens. There the Court invoked the ancient principle of de
minimis non curat lex—the law does not concern itself with trifles—and stated that
the FLSA “d[id] not . . . preclude the application of a de minimis rule” where “the
matter in issue covers only a few seconds or minutes of work beyond the scheduled
working hours.” Id. at 692 (emphasis added). We have since recognized the
doctrine in the FLSA context. Lindow v. United States, 738 F.2d 1057, 1062 (9th
Cir. 1984) (“As a general rule, employees cannot recover for otherwise
compensable time if it is de minimis.”); see Alvarez v. IBP, Inc., 339 F.3d 894,
903–04 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005). DOL has
recognized the doctrine in its regulations. See 29 C.F.R. § 785.47 (“[I]nsubstantial
or insignificant periods of time beyond the scheduled working hours, which cannot
as a practical administrative matter be precisely recorded for payroll purposes, may
18
be disregarded.”). More recently, however, the Court has questioned the
application of the de minimis doctrine to the FLSA. Sandifer v. U.S. Steel Corp.,
571 U.S. 220, 234 (2014) (“A de minimis doctrine does not fit comfortably within
the statute at issue here, which, it can fairly be said, is all about trifles . . . .”). The
district court acknowledged Connexx’s argument that the time was de minimis but
did not reach the issue because it ruled on the preliminary/postliminary ground.
Second, Connexx argues that we can affirm on the alternative basis that
Connexx had no actual or constructive knowledge of the alleged overtime. In
general, “an employee must be compensated for all hours worked,” including “[a]ll
time during which an employee is suffered or permitted to work whether or not he
is required to do so.” 29 C.F.R. § 778.223(a). DOL has further explained that
“[t]he rule is also applicable to work performed away from the premises or the job
site, or even at home. If the employer knows or has reason to believe that the work
is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12(emphasis added). We have summarized the rule:
[W]here an employer has no knowledge that an employee is engaging
in overtime work and that employee fails to notify the employer or
deliberately prevents the employer from acquiring knowledge of the
overtime work, the employer’s failure to pay for the overtime hours is
not a violation of [29 U.S.C. § 207].
19
Forrester v. Roth’s I. G. A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981).
Connexx argues that since it had a procedure for its employees to report additional
time, it is not responsible for compensating its employees for unreported time
because it did not know the work was being performed. The district court did not
reach this issue.
We decline to take up either issue. Both questions involve disputed factual
questions that the district court should decide in the first instance on remand. We
express no view on the merits of either issue.
IV. CONCLUSION
We reverse summary judgment on the FLSA claim and remand to the district
court for consideration of whether time spent shutting down computers is
compensable, whether the time spent booting up and down the computers is not
compensable under the de minimis doctrine and whether Connexx had no
knowledge of the alleged overtime such that it is not in violation of 29 U.S.C.
§ 207.
REVERSED AND REMANDED.
20