Remote Workday Ruling Reignites Pay Debate, Boosts Employers

An Ohio district court ruling may give call centers a road map for determining when compensable time for remote workers begins, sparking a hot debate and potentially impacting thousands of employees.

Workers clocking in must juggle the need to quickly start taking customer calls with spending time loading multiple programs to address those calls. Complicating the question of when compensable time starts, a federal judge in Ohio last week issued what he described as one of the first opinions to wrestle with how fielding calls from home changes things.

Judge Douglas R. Cole found workers punch in when they start using that first workplace app, not when they press the power button. Not everyone agrees with his reasoning, especially at a time when telework is increasing as millions of workers are now remote.

Figuring out when employers must pay workers for pre- or post-shift tasks is an “old problem,” and there’s no reason working from home rather than from an employer’s premises should change things, said University of Oregon employment law professor Elizabeth Tippett.

There’s no “one-size-fits-all approach” to resolving those questions, and it’s “entirely logical and practical” to say at-home work matters, said Epstein Becker & Green PC’s Jeff Ruzal, who defends employers in wage suits.

Still, attorneys agree employers will likely look to Cole’s US District Court for the Southern District of Ohio ruling when arguing why certain tasks aren’t integral and indispensable to workers’ jobs, meaning companies aren’t obligated to pay for them.

Cole’s approach “begs a fresh look by other courts as to how to analyze this issue,” Ruzal said.

Integral and Indispensable

Cole weighed in after workers sued the Cincinnati IT firm Recker Consulting LLC and a subsidiary for allegedly stiffing them on pay for the time spent booting up their computers and setting up call-related programs before starting their work-from-home shifts. Only some parts of that process—and the corresponding post-shift one—are compensable, the judge said Sept. 4.

But he’s “wrong on the law,” Matthew L. Turner, an attorney for the workers, told Bloomberg Law. Two circuit courts already addressed why starting a computer is integral to call center work, he added in a later call.

The US Court of Appeals for the Ninth Circuit in 2022 ruled that getting the technology up and running is “integral and indispensable” to in-person call center jobs. The Tenth Circuit sided with workers in another physical call center on boot-up claims the year before. Both cases involve fact patterns similar to the one present in the Recker workers’ lawsuit, but the remote setting involves “unique considerations,” Cole said.

Cole, whose court lies within the Sixth Circuit, didn’t find the other appellate courts’ opinions persuasive.

He can go a different way because he’s in a different circuit, but “I don’t think he adequately explained why being at home is any different,” said Turner, who’s considering an appeal. His firm, Sommers Schwartz PC, is co-counsel with Barkan Meizlish DeRose Cox LLP.

Attorneys for Recker didn’t respond to requests for comment.

The workers can’t do their jobs without a computer—that’s the “indispensable” half of the equation—but the act of turning it on isn’t “integral,” or an intrinsic part of the role, here, Cole said.

Booting up the computer “merely opens up an innumerable realm of possible uses and functions,” and not all of those are job-related, such as reading the news or playing an online game before turning to work tasks, he said.

But being on the clock doesn’t keep someone from simultaneously undertaking non-work activities, Filippatos PLLC’s Tanvir Rahman said. That’s something that “should be left to an employer to monitor and deal with,” the worker-side lawyer added.

Oregon’s Tippett also disagreed that the remote-work aspect made the case novel. Boot-up questions show up in other call center wage disputes, but those judges just aren’t treating at-home and in-person work differently, and “courts are perfectly capable of assessing” those cases on their facts, she said.

Ideally, any ambiguity about when work starts should favor the worker, Tippett added.

The “important distinction” is how someone is using the computer to perform the work, said Ruzal, the management-side lawyer. He isn’t involved in the case.

Other lawyers who defend employers agreed. “I think this is akin to an office employee parking their vehicle in the garage and taking the elevator to their office,” said Lewitt Hackman’s Tal Burnovski Yeyni.

Rise of Remote

Cases involving work-from-home questions increased after the Covid-19 pandemic introduced millions to remote work in 2020, Yeyni said. But “most of those have focused on the failure to reimburse for work-related expenses,” which some state laws require, she added.

Cole wrote that he wasn’t aware of any other published opinions addressing the boot-up issue in a remote setting. His decision “reflects the challenges courts are facing in adapting traditional analyses to modern, remote work arrangements,” said Jason Murtagh, who chairs Buchanan Ingersoll & Rooney PC’s California employment practice.

The district judge could have distinguished the Ninth and Tenth circuit opinions in his decision, but instead, he “explicitly questioned the validity of the analyses underpinning those decisions,” Murtagh said. He’s probably looking ahead to a possible appeal or “providing a road map for other district courts in circuits that have not yet decided this issue,” the management-side lawyer added.

“More and more judges are going to have to address this issue” as employers raise it, said Turner, the Recker workers’ attorney. The “bottom line” is that employers will keep making these arguments and the law will develop, he said.

His clients’ case could be a good opportunity for the Sixth Circuit to step in and provide some guidance, he added. If that court splits with the Ninth and Tenth circuits, the US Supreme Court could ultimately have to clarify things across the country.