Affiliated Computers Services, Inc. (“ACS”), a company owned by Xerox, has agreed to settle a wage and hour dispute with call center employees for $4.5 million. The call center workers claim that ACS failed to record and pay them for their time spent logging onto their computers each day. The employees allege that ACS’ failure to record this time resulted in them being denied their regular pay as well as overtime pay. The case is entitled Bell v. Affiliated Computer Services and was filed in the District of Oregon.
At first glance, the Bell settlement is mind-boggling considering that the time spent turning on a computer likely only takes a few minutes each day and does not seem like “work.” However, there has been a significant amount of litigation on this issue over the past year, and in many instances, these cases have resulted in large settlements.
Employers defending these off the clock cases have principally relied on the de minimis exception set forth in the federal regulations. This exception provides that “ insubstantial or insignificant periods of time outside scheduled working hours may be disregarded in recording time.” However, the de minimis exception is only applicable where the work involved is for such a short duration that it cannot be precisely recorded for payroll purposes.
The courts have refused to issue a standard amount of time that would automatically qualify as de minimis. Rather, the United States Supreme Court and several circuit courts of appeal have determined that periods of time ranging from 7 to 10 minutes is considered de minimis. The federal regulations, however, provide a more conservative view of de minimis work – – less than 5 minutes each day.
Employers can expect more off the clock cases dealing with “preparatory” work duties, such as turning on a computer at the beginning of each shift, in the near future. Employers should review their time recording policies in an effort to avoid potential liability. More importantly, employers should carefully scrutinize what, if any, pre-shift or post-shift activities their employees may be engaging in, as those activities may later be claimed to be “work.”