Monday, November 24, 2008

More articles on Legal Tech Is Booting A Computer Really Work?

Litigious employees demand to be paid for logging on

By TRESA BALDAS and DOUGLAS S. MALAN

An hourly employee comes to work, hangs up his jacket, hits the power button on his computer and waits for the unit to fire up. Is he working yet? Should he be paid?

You might think it's a silly question. But the issue is getting some serious attention, as lawyers are noting a new type of lawsuit, in which employees are suing over time spent booting - or starting up -- their computers.

During the past year, several companies, including AT&T Inc., UnitedHealth Group Inc. and Cigna Corp., have been hit with lawsuits in which employees claimed that they were not paid for the 15- to 30-minute task of booting their computers at the start of each day and logging out at the end.

"It's a creative endeavor to try to squeeze as much time into the workday as possible," said Glenn A. Duhl, who is a management-side attorney for Siegel, O'Connor, O'Donnell & Beck in Hartford. When it comes to compensable time, "the question is what is the employee doing while the computer boots up?"

Mark Thierman, a Las Vegas solo who filed a handful of computer-booting lawsuits in recent years, said for the most part, they're starting paperwork, making calls or arranging their calendar while waiting on the computer. Add up those booting minutes over a week, and hourly employees could be losing some serious pay, argues Thierman.

"These are hourly employees who are not making much more than minimum wage," Thierman said. "There's a good half-hour a day that they're not being paid for. It adds up."

Such scenarios do not apply to salaried employees.

Having A Smoke

Management-side attorney Richard Rosenblatt, a partner in the Princeton, N.J., office of Morgan, Lewis & Bockius who is defending employers in computer-booting lawsuits, sees the matter differently. He believes that, in most cases, computer booting does not warrant being called work. Having spent time in call centers observing work behaviors, he said most employees boot the computer, then engage in non-work activities.

"They go have a smoke, talk to friends, get coffee - they're not working, and all they've done at that point is press a button to power up their computer, or enter in a key word," Rosenblatt said.

In lawsuits, filed in California, Georgia, Missouri and elsewhere, employees allege violations of the Fair Labor Standards Act, which requires employers to pay for all hours worked. But the Portal-to-Portal Act creates an exception for activities that are routinely performed right before or after the actual job. To succeed, plaintiffs must prove that those activities, such as booting up, are an integral part of the job.

Many such lawsuits involve the issue of "donning and doffing." Meat industry workers, for example, have filed suit because they weren't paid for the time spent putting on and taking off clothes that are required in meat packing plants. Duhl characterizes the boot-up lawsuits as "the white-collar version of the donning and doffing claims."

Joshua Hawks-Ladds, a Hartford-based Pullman & Comley employment attorney, believes that the law is clear when it comes to disputes about wages and what actions should be compensated.

He cited the 2005 U.S. Supreme Court decision in IBP Inc. v. Alvarez, which stated that workers should be paid for the time they spend on the job site preparing to work. In that case, the Supreme Court upheld two lower courts that decided that workers should be compensated for time spent donning and doffing equipment because that equipment was integral to their jobs.

"I would think booting up a computer is an integral part of the workday, as well," said Hawks-Ladds. "Generally, in our day and age, I would think that employers would lose the argument" that booting up isn't part of the workday.

The issue of when the workday starts and ends will become more complicated as use of mobile technology expands among all workers, salaried and hourly.

Duhl counsels clients to carefully assess how hourly employees are connected to the workplace when they're off-site. He said the employer could be on the hook for additional wages owed when the employee checks e-mail remotely.

Hawks-Ladds added: "That's going to be the next brave new world of wage litigation."•