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9th Cir.: Time Spent by Call Center Workers Booting Up Computers is Compensable

Cadena v. Customer Connexx LLC

The time a group of call center workers spent booting up their computers is inextricably intertwined with their work and therefore compensable under the Fair Labor Standards Act (FLSA), the Ninth Circuit ruled this week, overturning a win a district court handed to their employer, and joining sister circuits who have reached a similar conclusion.

In a unanimous published decision, the Ninth Circuit reversed a Nevada district court’s 2021 decision which had granted call center employer Customer Connexx LLC summary judgment on the workers’ overtime suit, reasoning that the workers needed to have a functional computer in order to do their jobs. Thus, the panel concluded that the time the call center workers spent booting up the computers is compensable under the Portal-to-Portal Act.

“The employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments,” U.S. Circuit Judge Jay S. Bybee wrote on behalf of the panel.

Under the Portal-to-Portal Act, which amended the FLSA, employers are not required to pay for time workers spend traveling to and from the place of principal work activities or for time they spend on certain preliminary or postliminary activities which are not integral to their work.

Here, the workers sued in 2018, alleging that Connexx, failed to pay them overtime as required by the FLSA and Nevada law, because they failed to track and compensate them for the time they spent booting up and turning off their computers after they logged into and out of the company’s timekeeping system.

The district court granted Connexx summary judgment in July 2021, finding that the tasks the workers completed before and after they logged out of the company’s timekeeping system were not compensable preliminary and postliminary activities because they did not meet the legal standard to be considered part of their jobs.

The Ninth Circuit disagreed and reversed, saying the district court erred in focusing its reasoning on whether the activities were essential to the workers’ jobs and should have instead put emphasis on whether starting the computer led the call center workers to be able to perform their work. Discussing the issue, the Court explained:

When the employees’ duties are understood in this way, the electronic timekeeping system becomes a red herring. It is a convenience to the employer… It has no impact on the ‘integral and indispensable’ analysis except to show us when Connexx began counting the employees’ time.

Because the workers needed to have “a functional computer … turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities,” the panel concluded.

The Ninth Circuit also rejected Connexx’s argument that the district court’s decision should be affirmed because the pre-shift time was de minimis and because the company was not aware of the alleged overtime, noting that those are “factual questions” that the lower court didn’t address, and thus not properly before it.

Of note, the panel clarified in a footnote that its opinion focused on the pre-shift activities, and stated that its opinion should not be read to hold that turning the computers off was an integral part of the workers’ jobs.

The Department of Labor had filed an amicus brief in support of the workers, in which it argued the time at issue was compensable under the FLSA, because the workers could not do their jobs without booting up the computers.

Click Cadena v. Customer Connexx LLC to read the entire decision.

*** Andrew Frisch and Morgan & Morgan are actively handling and investigating similar cases on behalf of call center workers. If you believe your call center employer is not paying you for all time worked, contact us for a free consultation at (888) OVERTIME [888-683-7846] today. ***

Morgan & Morgan Investigating Claims Against Arise Virtual Solutions for Failing to Pay Legally Due Wages to Customer Service Agents

The Claims Assert That Arise Illegally Profited by Unlawfully Misclassifying Customer Service Agents as Independent Contractors Rather than Employees, Denying Workers Money and Benefits

Morgan & Morgan is investigating allegations of wage theft against Arise Virtual Solutions, Inc. on behalf of customer service representatives. Arise is a customer service support company that contracts with a multitude of companies to outsource their customer service needs. The investigation has revealed that Arise improperly denied customer service agents minimum wage, overtime, and other benefits by misclassifying them as independent contractors rather than employees. Arise’s scheme is believed to have injured tens of thousands of workers.

“We belive that Arise has been constructed to intentionally flout wage and hour laws and to avoid paying workers the minimum wage, overtime, and other benefits that employees are typically entitled to. Companies like Arise cannot escape the application of wage and hour laws by labeling itself a gig economy company and/or labeling its workers contractors if they are truly employees under the law as we believe. We will hold companies like Arise accountable if they shortchange workers.”

Worker misclassification is illegal, and occurs where an employer deprives employees minimum wage, overtime, and/or other benefits typically earned by employees, by classifying them as “independent contractors,” who are generally not entitled to the same protections.

Arise is a customer support services company that operates in the gig economy and employs a workforce of customer support agents, many of whom work remotely from their homes. Arise contracts with many Fortune 500 clients that are looking to cut costs by outsourcing call-center services. Arise maintains an online platform that allows its clients’ customer service calls to be routed to an Arise agent to resolve the issue. Arise has employed thousands of customer support agents nationwide and subjects them to the same common scheme. 

Our investigation has revealed that Arise has systemically misclassified its agents as independent contractors, denying them their rights to minimum wage, overtime, another benefits. We believe the agents are legally employees because Arise has the power to hire and fire them, determines their rate of pay, requires agents to meet with supervisors and managers, and controls agents with a digital surveillance apparatus that tracks their performance down to the precise second. Moreover, Arise’s agents do the work at the very heart of the company’s business—Arise could not operate its customer support business without its customer support agents. In other words, we believe that the “economic reality” test utilized by federal courts, as applied to the Customer Service Agents, renders them employees rather than true contractors under the law. 

Arise uses numerous methods to unlawfully short agents the wages they rightfully earned. Many agents work at hourly rates that are blatantly below the applicable minimum wage. Arise also further cuts into agents’ pay by charging them for training and certification fees, requiring agents to purchase their own work equipment, requiring agents to work unpaid hours (such as meeting with supervisors), and docking agent pay for failing to meet perforance goals. Additionally, it appears that Arise does not pay any of its Customer Service Agents overtime premiums when they work overtime hours.

In these lawsuits, Morgan & Morgan intends to seek damages for wages owed to agents as a result of Arise’s minimum wage, and overtime violations.

If you are a current Customer Service Agent, or previously worked for Arise as a Customer Service Agent, you may have a claim for unpaid wages, including minimum wages and overtime wages, as well as other damages.

Contact us for a free consultation at (888) OVERTIME [888-683-7846] to discuss your rights today.

Class Conditionally Certified In Centex Unpaid Overtime Case

Odem v. Centex Homes

A federal judge has granted conditional certification to a nationwide class of “Field Managers” in an overtime wage suit against Centex Homes Inc. that could include as many as 3,500 opt-in plaintiffs.  Centex “Field Managers” can find out more about the case by contacting class attorneys Morgan & Morgan at 1-866-344-9243.

A copy of the Order certifying the class can be found at Odem v. Centex Homes