In an interesting application of the FLSA de minimis rule, the court in Peterson v. Nelnet Diversified Solutions granted a call center operator’s motion for summary judgment in an FLSA pre-shift “off the clock” collective action. The dispute focused on the time required for employees to get “call ready,” including time required for the employees to activate their computers by swiping an access badge and entering user name and password credentials necessary to launch a Citrix session (known as computer “boot up” time) and the additional time required for Citrix to provide employees access to the company’s electronic timeclock system (Citrix-Active time).

The case was initially certified as a “stage one” FLSA collective action and attracted almost 350 opt-in plaintiffs at three of the company’s locations. Discovery and expert witness reports established that the amount of time required to complete the tasks at issue varied by location, and that the combined total averaged less than 3 minutes per day for each employee.

The opinion reviewed recent case law discussing whether certain types of “preliminary” activity constitute compensable work under the Portal-to-Portal Act amendments to the FLSA. The court rejected plaintiff’s argument that interpretive guidance provided by the DOL regarding the treatment of pre-shift activities (expressed in a “Fact Sheet” published in 2008) was entitled to deference under principles first announced in Skidmore v. Swift & Co., 323 U.S. 124 (1944). The court concluded that the tasks at issue were “integral and indispensable” and thus compensable within the meaning of the FLSA. 

The court then applied a multi-factor articulation of the FLSA de minimis test that focuses on “the balance between the burden of remedying the situation in relation to the amount of lost wages….” The court credited expert testimony offered by the employer that its current computer systems did not link information from the badge-swiping time stamps with its timekeeping system such that keeping track of these pre-shift activities would require the employer to implement a substantively different timekeeping system that would represent a serious administrative burden. The court concluded that this burden, weighed against the parties’ stipulation that the lost wages for the class period amounted to roughly $30,000, warranted the conclusion that the activities were de minimis and that the employer was thus entitled to summary judgment.