It seems every other week there is a call center case involving preliminary and postliminary working time.  Now, it is a Wayfair call center.  The customer service workers allege that the booting up of their computers and their logging into various programs before work is compensable because it is integrally related to their primary job duties.  This is the typical judicial analysis in these cases.  The case is entitled Counts et al. v. Wayfair LLC and was filed in federal court in the District of Massachusetts.

The workers, who are spread out across the country, allege that this time resulted in overtime violations across the board.  They allege that the preliminary time added up to “no less than 14 minutes per day.”  They claim that “this time could easily be recorded, accounted for and paid, but defendant chose not to credit such time as time worked.”

The workers allege that the Company mandates that they log on to a private network and also log on to several applications, e.g., Jabber, Gmail.  They also need to use a dual authentication process.  They claim these duties are essential, or integral, to their jobs, as they cannot start to work until they are signed on and have activated these applications.  The named plaintiff alleges that she could accumulated almost two extra hours (of overtime) in a certain week if she included all of this log in, preliminary work.

The workers seek to secure a class of all current/former customer service representatives for the past three years.  They seek to bring in workers from South Carolina, Oregon and Maine.  The workers charge that the Company had knowledge that this practice was illegal citing a USDOL advisement from 2008 that addressed call center workers.  That alert, state the plaintiffs, warned that for such employees, their compensable time included all the time from the “first principal activity of the workday to the end of the last principal activity.”  This is also known as the continuous workday “principle.”

The Takeaway

These call center cases are trouble for the employer. If plaintiffs are credited that they cannot do their work without performing these preliminary/postliminary activities, then they are like the butchers from the Supreme Court slaughterhouse case from the 1940s who could not slaughter the cows without first sharpening their knives. The employer may have a de minimis defense but I hate putting all my eggs in that basket. The best option, indeed, the only practical option, may be to let the workers clock in first and then do those start-up activities for those few compensable minutes.

Spend a nickel to save a lot of dollars…