Question: I have a remote employee asking if he’s going to be paid for the time it takes to log into our timekeeping software. This seems ridiculous. It only takes him a few minutes—if that—each day. Do we have to pay for this time?
Answer: If his work depends on his computer use and he’s spending a few minutes every day logging in, you most likely should be paying for that time. The Fair Labor Standards Act (FLSA) requires nonexempt employees (i.e., those who are eligible for overtime) to be paid for all time worked, including pre-shift and post-shift activities that are integral and indispensable to the job, unless the time spent on those activities is “de minimis.” If your employee regularly uses his computer for his job duties, and logging in is necessary to use the computer and start the time clock, then that time is integral and indispensable to his job. However, if the amount of time logging in is too small, irregular, or administratively difficult to track (e.g., a few seconds or minutes that varies by the day and by the employee), then it could be regarded as de minimis—and not compensable—under federal law. (Be sure to check state law! Some states, like California, don’t recognize the de minimis exception.)
Whether employees should be paid for login time was the subject of recent cases in the U.S. Tenth Circuit Court of Appeals and a federal district court in Pennsylvania. In the first case, the court ruled that employees at a loan servicing center should be paid for the time to wake up their computer, log in, load software, and access the online time clock, even though the estimated time was 2.27 minutes or less (at a cost of $0.48) per shift. The court said this amount of time, because it could be “reasonably estimated,” wasn’t too difficult for the company to track (Peterson v. Nelnet Diversified Sols., 10th Cir, Oct. 2021). The second case had an almost identical login process for employees at a background checking company, which the court found compensable because their work “depended and centered on their computer access.” Whether the time spent was de minimis is still being argued in court (Garcia v. Vertical Screen, Inc., ED Penn, Jan. 2022).
If you have nonexempt employees who regularly use a computer and access an online timeclock at the start of the day, consider whether the system is accounting (and you are paying) for the time spent logging in. If you aren’t tracking or paying, measure how long it takes employees to log in and access the time clock. Is this time so small, infrequent, or varied that there’s no way you can come up with a reasonable estimate of time spent? Even if you’re relying on clock rounding to cover login time, check the rounding against actual time spent to make sure that during a representative time period, you’re truly paying for all hours worked. For more information on what time is compensable under federal law, see our Legal Guide, Compensation for Pre-Shift and Post-Shift Activities. If you’re unsure how federal or state law may apply to you, check with your Vigilant Law Group employment attorney.