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Court Parses The Workday, And The Employer May Have To Pay

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in Office Management

Workdays can be split roughly into three parts: pre-work activities (if any), the actual workday, and post-work activities (if any). Under the Fair Labor Standards Act (FLSA), you have to pay employees for their pre-work and post-work activities if those tasks are integral and indispensable to their principal activities. A federal appeals court has ruled that employees' post-work activities, which consisted of uploading data to the company's server, may be compensable working time. [Rutti v. Lojack Corp., Inc., No. 07-56599, 9th Cir. (2009).]


Technology complicates the workday. Technicians were required to log on to hand-held computers to receive daily job instructions before their workdays began. They also planned their driving routes and prioritized jobs before leaving home. During the workday, they input data into their hand-held computers, and after work, at home, they were required to upload that data to the company's server. The uploading process could take as little as five to 10 minutes, but evidence suggested that it often took more than one attempt to successfully transmit the data.


Employees sought compensation for their preliminary and post-work activities. The company asked a federal trial court to rule summarily in its favor. Company: Employees' activities are either de minimis or not integral and indispensable to their principal activities. Therefore, those activities aren't compensable. The court agreed, and ruled for the employer.


FLSA TERMINOLOGY: Integral and indispensable activities are performed as part of employees' regular work in the ordinary course of business, regardless of when those activities are performed (i.e., before or after the workday). De minimis activities are activities that take a few seconds or minutes beyond the scheduled workday to perform and that are administratively difficult to account for.


Not so fast. The appellate court first ruled that employees' preliminary activities weren't compensable, because they weren't integral to their principal activities. Court: Employees' preliminary activities — receiving, mapping, and prioritizing jobs and routes — weren't compensable because they were primarily related to commuting, which isn't compensable. In any event, the preliminary activities were de minimis, the court concluded.


However, the court sent the case back to the trial court for it to determine whether the post-work activities were compensable. Court: Uploading data to the company's server appears to be part of employees' regular work. However, the company could be still be entitled to a ruling in its favor, if it's determined that those post-work activities are de minimis. Those activities may or may not be de minimis, since evidence suggests that there were frequent transmission failures, which would require more of employees' attention.


TIME & MONEY: This case is far from over, and the employees may yet prevail. Worse: The court gave the OK to using time estimates, if accurate records of employees' post-work activities don't exist, as they might not, since the company never thought they would have to track this time in the first place. Therefore, it's to the company's advantage to have a clear understanding of exactly what employees do before and after their workdays. This is particularly important, since technology makes working from home easier. Employees can, for example, check their e-mail before and after work. But technology cuts both ways — it also makes tracking employees' time easier for you, so you may be on the hook for even these small amounts of time.

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