[00:00:04] Speaker 02:
Good morning.

[00:00:05] Speaker 02:
Good morning, Your Honors.

[00:00:06] Speaker 02:
May it please the Court, Joshua Buck, on behalf of the Appellants.

[00:00:09] Speaker 02:
I'd like to reserve three minutes of my time for rebuttal, if that is okay.

[00:00:12] Speaker 01:
Just be mindful of your time, Mr. Buck.

[00:00:16] Speaker 02:
Yes, Your Honor.

[00:00:18] Speaker 02:
This is the second appeal in this particular action resulting from the district court granting summary judgment on behalf of Appell E Customer Connects.

[00:00:29] Speaker 02:
In the first appeal, this court determined that the district court misapplied the facts to the preliminary and post-eliminatory standard on an integrity staffing B-Busk.

[00:00:43] Speaker 02:
In doing so, in its opinion remanding and reversing the prior district court's order, it instructed the district court to look at whether or not the time that was submitted in the summary judgment papers could be deemed to be de minimis and thus excludable for compensation under the FLSA and whether the employer here had knowledge of the unpaid work.

[00:01:10] Speaker 02:
The district court also instructed, excuse me, this court also instructed the district court to look to see whether or not there has been a change in the de minimis standard in lieu of Santa Fe v. U.S.

[00:01:23] Speaker 02:
Steel.

[00:01:26] Speaker 02:
The district court on remand without further briefing on the matter

[00:01:32] Speaker 02:
decided that Sandifer had no impact on the de minimis standard in the FLSA, concluded that under this court's existing standard for determining de minimis that was set forth in 1984 in Lindau, that the appellants

[00:01:51] Speaker 02:
time that they had asserted was de minimis and that they failed on every single factor.

[00:01:59] Speaker 02:
The district court also found against the appellants and said that the employer did not have any knowledge of the unpaid work at issue.

[00:02:06] Speaker 03:
Mr. Buckley, if I may ask you, are you counsel for your client at the trial court level?

[00:02:14] Speaker 03:
I am along with my associate, Ms.

[00:02:17] Speaker 03:
Jones, yes.

[00:02:17] Speaker 03:
Okay, so how did this unfold after the mandate came down?

[00:02:22] Speaker 03:
Did the district court have a status conference or was it just silent until the order that's on appeal came out?

[00:02:32] Speaker 02:
If I can recall your honor, I believe that the district court stated that it could resolve the issues on the briefing that was submitted during the in the prior.

[00:02:43] Speaker 02:
But I'm, that's my best recollection at the moment.

[00:02:47] Speaker 03:
Okay, thank you.

[00:02:48] Speaker 02:
You're welcome.

[00:02:52] Speaker 02:
I submit that the District Court erred in all three respects.

[00:02:55] Speaker 02:
First, I submit that the District Court erred when it currently rejected that the United States Supreme Court decision in Sanford at least impacted the continued viability of the de minimis doctrine in FLSA cases.

[00:03:08] Speaker 00:
Well, whether it impacts it or not, we have firm precedent that there is such a doctrine and we lack authority as a three-judge panel to overturn it absent

[00:03:20] Speaker 00:
an irreconcilable conflict.

[00:03:22] Speaker 00:
So can you tell us why there's an irreconcilable conflict?

[00:03:27] Speaker 02:
I think that, Your Honor, first, that the U.S.

[00:03:31] Speaker 02:
Supreme Court's decision in Sanofre at least raises the specter that the minimalist doctrine does not have any standard.

[00:03:37] Speaker 00:
But what I'm saying is we can't deal with specters at this point.

[00:03:39] Speaker 00:
I mean, you can file a non-bank petition.

[00:03:42] Speaker 00:
But as far as this three-judge paddle is concerned, specters don't matter.

[00:03:47] Speaker 00:
What matters is whether there's an irreconcilable conflict.

[00:03:51] Speaker 02:
Well, your honor, I'm not sure there's an irreconcilable conflict within the circuit court cases, but I do think that even if this court does not abandon the de minimis doctrine in FLSA cases, Sanderfer and the current stage of the digital age nonetheless

[00:04:06] Speaker 02:
do impact this court's continued recognition of the Lindau factors if it so desires.

[00:04:12] Speaker 02:
And that's one of the things that we argued in our briefing, is that the Lindau factors that are currently in place, that are currently recognized in this circuit, in many circuits indeed,

[00:04:22] Speaker 02:
and continue to be applied in cases such as this particular case do not have the same applicability as they did when they were first announced in 1984.

[00:04:34] Speaker 02:
And the reason being is one of the critical factors in Lindau is the administrative difficulty of recording work time.

[00:04:44] Speaker 02:
I would submit to you in today's digital age, that factor has become obsolete, and that should not impact and should not be part of any kind of de minimis.

[00:04:55] Speaker 00:
Well, I know what you're really saying is that there are different administrative considerations, because it's easier to do.

[00:05:00] Speaker 00:
So you can tell us about why that's the case, but I don't think it washes—I mean, it depends on the particular situation, what matters.

[00:05:09] Speaker 00:
in terms—so it would be helpful to me, at least, if you actually went through the liberty factor, the Lindau factors.

[00:05:16] Speaker 02:
Yes, Your Honor.

[00:05:18] Speaker 02:
So under Lindau, and as I stated, it was recognized in many cases that Your Honors have likely addressed, is the first factor is whether or not it's administratively difficult to capture the unpaid work that is an issue here.

[00:05:31] Speaker 00:
That's really the last factor pretty much, but go ahead.

[00:05:35] Speaker 02:
I've seen courts jumble the factors all throughout.

[00:05:38] Speaker 00:
I mean, only because if you don't get there, there's not actual

[00:05:41] Speaker 00:
The time is de minimis no matter what.

[00:05:47] Speaker 00:
But anyway, go ahead.

[00:05:49] Speaker 02:
Second factor or one of the other factors.

[00:05:52] Speaker 00:
So tell me why it's administratively captureable.

[00:05:56] Speaker 02:
Here it's clearly administratively reasonable to do so because there's an employer such as this employer, a call center, can place a time clock to be able to capture the time is issued here, which is the computer boot up time.

[00:06:08] Speaker 02:
Indeed, in their very own handbook, they state that one of the ways in which they do capture time is through an employee time clock.

[00:06:16] Speaker 02:
However, it appears from the testimony that they did not employ that particular method.

[00:06:21] Speaker 02:
It is not administratively difficult in today's day and age to be able to capture the amount of time that an employee engages with the computer.

[00:06:29] Speaker 02:
Here, we're dealing with work time that is spent

[00:06:33] Speaker 02:
Engaging with the computer, turning the computer on, booting the program, booting up the timekeeping system in order to log in.

[00:06:39] Speaker 02:
As the record demonstrates, this particular employer utilized fairly antiquated technology that was routinely

[00:06:50] Speaker 02:
disabled, slow, from the testimony that was presented to the court, employees spent upwards to 11 to 19 minutes a day engaging in the computer.

[00:07:01] Speaker 00:
I don't know where you're getting that number from.

[00:07:03] Speaker 00:
I don't know where they're getting their numbers from either.

[00:07:04] Speaker 00:
The district court got the numbers.

[00:07:07] Speaker 00:
The numbers that are being thrown around seem fairly random.

[00:07:13] Speaker 00:
From what I could tell, there were five of the 13.

[00:07:18] Speaker 00:
There were 13 plaintiffs, is that right?

[00:07:21] Speaker 02:
17, Your Honor.

[00:07:22] Speaker 00:
Oh, but I thought a couple of them washed out.

[00:07:25] Speaker 02:
There originally were 20, and three of those have washed out.

[00:07:27] Speaker 00:
Well, of the ones who gave numbers anyway, about five of them said that sometimes it was more than 10 minutes, and the rest of them said not.

[00:07:39] Speaker 00:
Is 10 minutes the benchmark?

[00:07:40] Speaker 00:
What do you think the benchmark is?

[00:07:41] Speaker 02:
I don't think there can be a benchmark, Your Honor.

[00:07:44] Speaker 02:
And this is one of the issues that I think that is brought about with this case.

[00:07:48] Speaker 02:
I believe at its heart this case can be decided by Your Honors, in our opinion, reversed and remanded, simply in an order, a reversal, non-published, and just use the existing factors.

[00:07:59] Speaker 02:
But I think that this case presents an opportunity for this panel to be able to clarify, at the very least, that when you have daily

[00:08:08] Speaker 02:
Work that is not compensated every single work day, that goes into the regularity of the work factor that Maria mentioned in Linda?

[00:08:20] Speaker 00:
Well, any kind of time check is gonna take some time.

[00:08:24] Speaker 00:
If you use a time clock, it's gonna take 30 seconds or a minute or something, right?

[00:08:30] Speaker 00:
And presumably you're gonna have to go somewhere

[00:08:35] Speaker 00:
click the time clock and go to your computer.

[00:08:38] Speaker 00:
So that's going to take some time.

[00:08:41] Speaker 00:
Maybe a minute, maybe less than a minute, but it's going to take some time.

[00:08:45] Speaker 00:
Is that right?

[00:08:47] Speaker 00:
However you do it, it's going to take some time.

[00:08:49] Speaker 02:
It would rather, but it's recognized in this case and in numerous cases what we recognize in their first appeal, waiting in line to punch a time clock is not compensable under the FLSA.

[00:08:58] Speaker 02:
We're not asserting that it does.

[00:09:00] Speaker 02:
But here, it's not just that as

[00:09:02] Speaker 02:
indicated it was resolved in the first appeal, which is the computer here is not simply a computer to capture time.

[00:09:09] Speaker 02:
The computer here is the lifeline of a call center agent's productive work.

[00:09:13] Speaker 01:
I guess to Judge Marzahn's question, you cite in the papers that it would take an average of 4.75 to 7.75 minutes

[00:09:24] Speaker 01:
of log off and down the computer, I guess, how were those numbers gotten to?

[00:09:34] Speaker 01:
I just wanted to make sure I understood that.

[00:09:36] Speaker 02:
Yes, certainly, Your Honor.

[00:09:37] Speaker 02:
Those are purely from the deposition testimony.

[00:09:41] Speaker 02:
Those are purely from when you read the deposition testimony that was submitted to the district court, in which Your Honors have in the appendix of record, is that the appellants testified that it would take

[00:09:53] Speaker 02:
five, to seven, to ten, to fifteen, twenty minutes to engage with the computer without compensation.

[00:10:00] Speaker 00:
Log in, we're talking now.

[00:10:03] Speaker 02:
Log in.

[00:10:06] Speaker 00:
But some of them insist, the number that you came up with, did you average all the people, what the people said, and did you use their largest, because some of them said it took this much time to that much time.

[00:10:21] Speaker 00:
How did you come up with that number?

[00:10:22] Speaker 00:
You never tell us.

[00:10:23] Speaker 02:
Well, again, deposition testimony and the appellants themselves testified as to the average.

[00:10:27] Speaker 00:
I understand that, but they said all different things.

[00:10:29] Speaker 00:
So how did you come up with a number?

[00:10:30] Speaker 00:
That number.

[00:10:31] Speaker 02:
We averaged the number that was performed in the deposition testimony.

[00:10:33] Speaker 00:
Average, meaning what?

[00:10:34] Speaker 00:
Average, if one person said it takes me five minutes to 15 minutes, what number did you use to average it?

[00:10:39] Speaker 02:
The average between those numbers.

[00:10:41] Speaker 00:
So you used the average number that each person gave, and then you averaged those.

[00:10:45] Speaker 02:
Correct.

[00:10:46] Speaker 02:
And we did not have an expert at this point in time.

[00:10:49] Speaker 00:
And if we reproduce that, we'd get your number.

[00:10:52] Speaker 02:
Yes, Your Honor.

[00:10:53] Speaker 02:
I mean, that's exactly how that number must come up with.

[00:10:55] Speaker 00:
You never explain that, by the way.

[00:10:56] Speaker 00:
You just keep saying this number.

[00:10:58] Speaker 02:
Well, one of the difficulties that we have in this particular case is that it was submitted from a defendant employer's summary judgment.

[00:11:07] Speaker 02:
We have testimony, we have evidence that was submitted to the district court.

[00:11:15] Speaker 02:
Obviously, if this case proceeds to trial, we will have, it's a relatively smaller case, but we will have each individual appellant likely come in to testify for a jury to determine what they believe to be the actual amount of minutes that are in dispute.

[00:11:29] Speaker 02:
One of the issues that we raised also in our brief is the difficulty of having a district court

[00:11:34] Speaker 02:
apparently resolve the issues of how much time is at issue here on a summary judgment rather than allowing this court, rather than allowing it to go to a jury to make that determination.

[00:11:47] Speaker 02:
But I will focus again on going back from the three factors that Justice Brezone asked about.

[00:11:52] Speaker 01:
You can do that, but you have three minutes left.

[00:11:55] Speaker 01:
Do you want to reserve?

[00:11:55] Speaker 02:
I'm going to go ahead and address these factors real fast to you, Your Honor, because I think it makes sense to do so.

[00:12:03] Speaker 02:
One issue is the regularity of the additional work.

[00:12:05] Speaker 02:
I mentioned on that.

[00:12:07] Speaker 02:
The district court looked at the regularity.

[00:12:10] Speaker 00:
The district court's view, which I'm sure is what the defense is going to challenge, is that it may have been regular that they did work, but it wasn't regular that they did more than did a minimus work.

[00:12:21] Speaker 00:
The amount of time they spent on it was not regular.

[00:12:27] Speaker 02:
Well, that may be one of, but that's not necessarily the standard.

[00:12:33] Speaker 02:
And we can look at numerous cases.

[00:12:36] Speaker 02:
This is not a Corbin case where we have one minute of uncompensated time in one instance.

[00:12:46] Speaker 02:
I don't think in dispute that the court decided that that was de minimis.

[00:12:51] Speaker 02:
But when you have work that has been testified to in the papers and in the deposition testimony, five minutes a day, five minutes a day, each and every day,

[00:13:02] Speaker 02:
then falls in the impellence favor with regards to the regularity of the work, because it's conducted every single day.

[00:13:09] Speaker 02:
And even if you go back and look at Lindau, Lindau recognized that there was a certain problem with the idea that an employee could come and make a claim under the FLSA for $100 that they're owed in one particular work week.

[00:13:22] Speaker 02:
That would not be de minimis.

[00:13:24] Speaker 02:
But then Lindau also recognizes that, well, what if the same employee sought one minute or one dollar for one week over the course of 50 weeks or over the course of 100 weeks?

[00:13:38] Speaker 02:
That person who sought the $1 per week should not be thrown out of court, whereas the other employee who sought one chunk of $50 that particular week.

[00:13:49] Speaker 02:
I think that Lindau here

[00:13:52] Speaker 02:
is instructive and assists us in being able to say that when work is performed on a daily basis, whether it's a small increment of time, it is not de minimis.

[00:14:03] Speaker 02:
I submit to you that all of the factors, frankly, under Lindau, fall in favor of the appellants, and I'll reserve my last minute of time for rebuttal.

[00:14:12] Speaker 01:
Very well.

[00:14:12] Speaker 01:
Thank you.

[00:14:12] Speaker 01:
Thank you.

[00:14:18] Speaker 04:
May it please the court, my name is Rob Jinalat.

[00:14:20] Speaker 04:
I'm here on behalf of Appalize Customer Connects and Jan 1.

[00:14:26] Speaker 04:
We, of course, believe the district court reached the correct conclusion in this case.

[00:14:30] Speaker 04:
I would like to briefly address the Corbin decision.

[00:14:32] Speaker 04:
I think it's important and elaborate on it a little bit.

[00:14:37] Speaker 04:
Their call center employees allege that they arrived 15 minutes early to one, log in, and two, load programs after clocking in.

[00:14:48] Speaker 04:
The Ninth Circuit's decision did not detail the login process, but if you look at the District Court's decision, it includes the facts.

[00:14:57] Speaker 04:
The employees had to unlock or wake up their computer, depending on what had happened at the end of the day.

[00:15:03] Speaker 04:
They pressed Control-Alt or Delete.

[00:15:05] Speaker 04:
They had to enter login information, and then they got in the timekeeping program.

[00:15:10] Speaker 04:
And the district court found that that took one to two minutes a day, and that the logout process took 30 seconds a day.

[00:15:16] Speaker 01:
Well, but here, I think they're saying, based upon the declarations, that they had somewhere between 4.75 and 7.75 minutes.

[00:15:24] Speaker 01:
Then are you saying that that's de minimis?

[00:15:28] Speaker 04:
Well, this court has held that daily periods of approximately 10 minutes are de minimis, although there's no rigid rule, of course.

[00:15:40] Speaker 04:
What you have in our case... Where do we hold that?

[00:15:43] Speaker 04:
Sorry.

[00:15:43] Speaker 00:
What case holds that?

[00:15:45] Speaker 00:
That every day, if every day you take, you know, nine and a half minutes, that's de minimis.

[00:15:52] Speaker 04:
It was originally stated in Lindau, but it's been repeated also.

[00:15:55] Speaker 00:
Lindau, where in Lindau is it?

[00:15:57] Speaker 04:
It's in the summary of the law on the amount of time at issue.

[00:16:03] Speaker 04:
It's very near the top of the legal analysis.

[00:16:07] Speaker 00:
Lindau was very concerned with the aggregate time.

[00:16:10] Speaker 00:
He said that you have to look at the aggregate.

[00:16:13] Speaker 04:
Lindau, the court found that the time was de minimis, even though it was seven to eight minutes.

[00:16:22] Speaker 04:
And so clearly here, the testimony is of range of time, anywhere from seconds to minutes.

[00:16:33] Speaker 04:
It's very difficult to estimate based on the average.

[00:16:37] Speaker 04:
But I do want to make very clear this assertion that it took 11 to 20 minutes in the brief.

[00:16:42] Speaker 04:
That is not a fact in this case.

[00:16:45] Speaker 00:
Well, it's a fact in this case that at least five of the people who testified testified that.

[00:16:50] Speaker 00:
to arrange that included more than 10 minutes.

[00:16:54] Speaker 04:
Well, let me give you an example.

[00:16:56] Speaker 00:
Your numbers don't make sense either because, in fact, there is testimony from a chunk of these people that it did take, often at least, more than 10 minutes.

[00:17:10] Speaker 04:
That's right in part.

[00:17:11] Speaker 04:
So for example, Andrew Gonzalez, one of the named plaintiffs, he testified that it sometimes took 10 to 15 minutes to clock in.

[00:17:20] Speaker 04:
But if you look at the full testimony, including the citations in our brief, they've omitted some very important facts, which is that the 10 to 15 minutes is when there were delays.

[00:17:30] Speaker 04:
He also testified that it only took

[00:17:34] Speaker 04:
one to two minutes when there were not delays.

[00:17:36] Speaker 00:
Well, the delays seemed to have to do with the fact that there were a lot of old computers and some of them didn't work and so that it did, you know, fairly frequently take longer.

[00:17:46] Speaker 04:
Yes, the delays were irregular.

[00:17:49] Speaker 04:
They were not every day.

[00:17:50] Speaker 04:
And the district court found that they were already paid for.

[00:17:54] Speaker 04:
And that's undisputed.

[00:17:55] Speaker 00:
The employees... Oh, it is undisputed.

[00:17:58] Speaker 00:
Where is it?

[00:17:58] Speaker 00:
How is it undisputed?

[00:17:59] Speaker 04:
So if you look at our statement of, sorry, if you look at plaintiff's statement, plaintiff's response to our statement of material facts that was briefed at the district court, they admitted that the employees reported when they had computer delays and that it was paid for or they didn't know if it was paid for or not.

[00:18:22] Speaker 04:
So the delays were irregular but it already paid for and I don't think that-

[00:18:27] Speaker 00:
If they didn't know, then there's some proof that it was paid for.

[00:18:29] Speaker 00:
But also, does the employee have to ask to get paid?

[00:18:38] Speaker 00:
The statute says suffer or permit to work.

[00:18:41] Speaker 00:
And ordinarily, the employer has to pay, not wait till somebody asks them to pay.

[00:18:45] Speaker 04:
Employees do not have to ask to get paid.

[00:18:48] Speaker 04:
The district court never said that.

[00:18:50] Speaker 04:
That is a misconstruction from plaintiffs' appellate brief.

[00:18:54] Speaker 04:
What the district court said was,

[00:18:56] Speaker 04:
You know, there was a process for these unusual circumstances for employees to report it, and they used it and they did get paid.

[00:19:08] Speaker 04:
Just returning a second to Corbin.

[00:19:13] Speaker 04:
The district court in Corbin found that the one to two minutes spent every day logging in, getting onto the timekeeping program, and then logging off was de minimis.

[00:19:24] Speaker 04:
And this court affirmed in a binding decision.

[00:19:28] Speaker 04:
And then again, in Ruddy versus Lojack, this court found that time spent logging onto

[00:19:35] Speaker 04:
A handheld computer was de minimis.

[00:19:37] Speaker 01:
I want to get you back to the Lindau factors.

[00:19:41] Speaker 04:
Sure.

[00:19:43] Speaker 01:
The practical administrative difficulty of recording the additional time, why wouldn't using a wall clock near the computer banks be a quick fix and an easy fix to the problems as the plaintiffs raise in their suit?

[00:19:55] Speaker 04:
Sure.

[00:19:59] Speaker 04:
Plaintiffs raised and argued the time clock issue for the first time on appeal.

[00:20:05] Speaker 04:
They never argued it below, so it's waived.

[00:20:08] Speaker 04:
Number two, the FLSA regulations specifically state, quote, employers are not required to use time clocks.

[00:20:15] Speaker 04:
Three, there's practical problems with time clocks.

[00:20:21] Speaker 04:
Unless you put the time clock right next to everyone's computer, you're paying for people to walk in from the entrance.

[00:20:28] Speaker 04:
And there's testimony that people would go to the break room, that they'd get coffee, they'd socialize in the expert report and in their deposition testimony.

[00:20:38] Speaker 04:
So you're requiring the employers to pay for some non-work time there.

[00:20:44] Speaker 04:
I also think that it's a bit ironic that they're asking for Connex and many other employers to use an old-fashioned timekeeping system in this kind of modern digital economy.

[00:20:58] Speaker 00:
The fact is... What about, I mean, there must be a way to put all this on cell phones.

[00:21:03] Speaker 04:
Well, then you get into questions of turning on your cell phone.

[00:21:07] Speaker 04:
And obviously, we're thinking about common senses.

[00:21:11] Speaker 04:
That's quickly, but there's a lot of other.

[00:21:14] Speaker 00:
Every time I go to put on my computer, I have to push a button on my cell phone before I can get in.

[00:21:22] Speaker 00:
No one's keeping my time, but that's the method of getting on the computer.

[00:21:28] Speaker 00:
And that's true of many other things these days.

[00:21:32] Speaker 00:
Push a button on your cell phone to check that it's really you.

[00:21:37] Speaker 00:
It seems pretty simple.

[00:21:39] Speaker 04:
Right.

[00:21:39] Speaker 04:
Well, I think there's other wage and hour issues with requiring everyone to use cell phones, which is probably why employers don't do that kind of outside of this case.

[00:21:47] Speaker 00:
Because they have to have their own cell phone.

[00:21:48] Speaker 04:
Well, and then the employers might need to pay for the expense of the phone.

[00:21:52] Speaker 04:
Sorry.

[00:21:54] Speaker 04:
There's no silver bullet solution here.

[00:21:58] Speaker 04:
And that's why I think this court and many other courts have recognized it.

[00:22:02] Speaker 04:
You know, the law is not so rigid to require employers to track every second like robots.

[00:22:09] Speaker 04:
There's some flexibility in the law.

[00:22:12] Speaker 03:
And why does it take so long to boot up some of these computers?

[00:22:16] Speaker 03:
It makes me think of a 486.

[00:22:19] Speaker 03:
You might be too young to remember what that was.

[00:22:22] Speaker 03:
But why does it take almost like 15, 16 minutes to boot this up?

[00:22:29] Speaker 04:
Well, I think that that was a regular.

[00:22:32] Speaker 04:
I remember that in one of the depositions, one of the plaintiffs testified that there was one computer that was known to be broken, but the employee went to that computer every day and tried to boot it up, even though every, so, you know, other employees went to computers that worked.

[00:22:52] Speaker 04:
So- What are they?

[00:22:53] Speaker 04:
Are they laptops?

[00:22:54] Speaker 04:
Are they- They're desktop computers.

[00:22:56] Speaker 04:
But, you know, they also upgraded them, and there's testimony about that, that they got faster.

[00:23:03] Speaker 04:
You know, there's testimony from Gonzalez, again, for example, that after he got promoted, you know, I guess that it took less time.

[00:23:11] Speaker 01:
But if there are still questions that are outstanding, why was it proper to get rid of this on summary judgment?

[00:23:17] Speaker 04:
Well, I think all those differences, all they showed— Those factual questions, I mean.

[00:23:20] Speaker 04:
Yeah, I think those differences, what they really show is all the variation in how much time it takes.

[00:23:31] Speaker 04:
It goes to the variability factor and supports summary judgment.

[00:23:34] Speaker 00:
But then in terms of when you say that people were paid, but the payment system seems to back out the first seven minutes because it rounds to the nearest quarter, right?

[00:23:50] Speaker 00:
So if somebody said it took 10 minutes, they wouldn't get paid for the 10 minutes.

[00:23:57] Speaker 00:
They'd get paid for three minutes.

[00:23:58] Speaker 00:
Is that right?

[00:23:59] Speaker 04:
There was a rounding policy such that if someone was supposed to start at 8, if they started at 7.55, it would round to 8.

[00:24:08] Speaker 04:
If they started at 8.05, it would round to 8.

[00:24:10] Speaker 04:
So our position is it's a neutral policy.

[00:24:13] Speaker 04:
The problem on plaintiffs.

[00:24:15] Speaker 00:
Maybe neutral, but it could result in somebody spending 10 minutes working and not getting paid for it.

[00:24:19] Speaker 00:
Well, the problem with the rounding issue is that's a separate type of claim that the district... Well, I understand that, but it means that the notion that if they ask to get paid, they're going to get paid, that's not really... I mean, it's not true because, as you say, some of them said they didn't know that they got paid, so that's not proof they got paid.

[00:24:35] Speaker 00:
But also, if they asked to get paid, they wouldn't get paid for at least the first seven minutes.

[00:24:44] Speaker 04:
I think what the district court ruled was that it wasn't material, whether it was set to the shift start time or the actual start time, because you had rounding in effect anyways, and there's no evidence that that harmed the employees.

[00:25:03] Speaker 00:
I'm not understanding why it doesn't harm the employees to, if they have, with some regularity, these things don't work well and it takes 10 or 15 minutes and you're saying, well, they could put in to get paid.

[00:25:25] Speaker 00:
A, we don't know that they actually did get paid, so that's a summary judgment issue.

[00:25:29] Speaker 00:
But secondly, we know they're not getting paid for at least a good chunk of that time.

[00:25:37] Speaker 04:
Well, no, because it goes both ways.

[00:25:39] Speaker 04:
If they started working late, then it would be rounded in their favor.

[00:25:46] Speaker 04:
Does that make sense?

[00:25:49] Speaker 00:
They're not claiming to have started working late.

[00:25:51] Speaker 00:
They're claiming to have started working on time, but not being able to.

[00:25:54] Speaker 00:
log in and not being able to show that they're there because the computers have the time it takes to get in the computer.

[00:26:03] Speaker 04:
So if they were reporting that they spent time logging in, but if they still arrived late, it might get rounded in their favor.

[00:26:15] Speaker 00:
They didn't always arrive early.

[00:26:16] Speaker 00:
They weren't arriving late.

[00:26:17] Speaker 00:
They were arriving on time, and they're not getting paid for it.

[00:26:20] Speaker 04:
Well, I think on that particular issue, whether they were paid or not, the burden is on plaintiffs there.

[00:26:26] Speaker 04:
On the de minimis issue, we do carry the burden and satisfied it.

[00:26:30] Speaker 04:
But on whether people were paid or not, under the Mount Clemens burden shifting standard, the employees do bear the burden to show they did not get paid for work time.

[00:26:40] Speaker 00:
Well, we know that they didn't get paid for some work time.

[00:26:43] Speaker 00:
It's just a question of how much work time they didn't get paid for.

[00:26:47] Speaker 01:
And that's where it's your burden to determine that it, or to prove that it was de minimis.

[00:26:51] Speaker 04:
Well, I think what the district court did, which is correct, is that you can't factor paid time into the de minimis issue.

[00:27:03] Speaker 04:
In other words, if you've already been paid, if you had a 20-minute computer delay, and that's why you clocked in at 9.20 instead of 9, then you reported it, and it got fixed, and you got that extra 20 minutes back.

[00:27:18] Speaker 04:
So why would we?

[00:27:19] Speaker 00:
But in fact, you wouldn't get the extra 20 minutes back.

[00:27:21] Speaker 00:
In that case, you'd get 15 minutes, right?

[00:27:25] Speaker 04:
Well, if you arrived at 9, and you had a 20-minute delay.

[00:27:29] Speaker 00:
Except that we have the surrounding thing.

[00:27:32] Speaker 04:
Right.

[00:27:33] Speaker 04:
I think it's really—the way this case was argued and presented at the lower court level, the rounding issue was not pled.

[00:27:42] Speaker 00:
And this whole argument about the— But it's relevant to your contention that if they in fact weren't paid for the time period, they would get the money.

[00:27:55] Speaker 00:
But in fact, they'd get some of the money if they asked for it, A, and B, if they were in fact paid for what they asked for, which we don't really know.

[00:28:07] Speaker 00:
I mean, you say that you had a system for doing it, but you don't really demonstrate that you do it.

[00:28:12] Speaker 04:
Oh, I mean, it is undisputed, again, if you look at plaintiffs' response to the statement of material facts, that the plaintiffs regularly used, when there were delays, they used the reporting system.

[00:28:25] Speaker 04:
They either used punch claim forms or email or other processes to report the delays and have it corrected.

[00:28:33] Speaker 00:
And some people said that they got paid and some people they didn't know said they didn't know if they got paid.

[00:28:37] Speaker 04:
Right.

[00:28:39] Speaker 04:
But some people said they went back and checked and confirmed.

[00:28:43] Speaker 04:
If you look at Daniel Curley, she always went back.

[00:28:46] Speaker 04:
She said she always went back and verified that it was correct.

[00:28:50] Speaker 04:
And many other plaintiffs also checked to confirm that the times were adjusted and they were paid for that time.

[00:28:59] Speaker 00:
This is another thing I don't understand.

[00:29:02] Speaker 00:
If the policy is that you're not paying for the boot-up time, then why were they able to get paid for the boot-up time?

[00:29:09] Speaker 00:
If they wrote down that, I want to get paid for the boot-up time, why would they get paid for it?

[00:29:13] Speaker 00:
The policy was not to pay for it.

[00:29:18] Speaker 00:
When it took a substantial... There were a lot of complaints from people exactly of that.

[00:29:22] Speaker 04:
When it took a substantial amount of time is when people got paid.

[00:29:27] Speaker 04:
Because I think as the law expects, the employer is not required to track the very small amounts of time.

[00:29:37] Speaker 04:
But when it becomes substantial, we are required to pay for it.

[00:29:40] Speaker 00:
So if somebody put in something saying that it took me 10 minutes and I wasn't paid for it, it would be up to the employer whether to pay for that 10 minutes or not, whether they think that's enough to pay for it.

[00:29:48] Speaker 04:
Well, again, this was irregular that that happened.

[00:29:52] Speaker 04:
That did not happen every day.

[00:29:53] Speaker 04:
The testimony shows that delays did not happen every day.

[00:29:58] Speaker 04:
So you can imagine employees all the time engage sometimes in unexpected work.

[00:30:07] Speaker 04:
And there are processes in place to report that.

[00:30:12] Speaker 04:
That's very common.

[00:30:16] Speaker 01:
Any additional questions?

[00:30:19] Speaker 01:
All right, thank you.

[00:30:31] Speaker 02:
In response to a couple of the recent questions, the testimony from the appellants was that they were expected to be ready to take calls at the start of their shift.

[00:30:42] Speaker 02:
That means that all of the computer work that was done prior to the beginning of the shift, such as turning on the computer, waiting for it to load up, opening up the computer timekeeping system, clocking in, was not paid.

[00:30:57] Speaker 02:
It was in an instance that they could submit the punch

[00:31:01] Speaker 02:
adjustment form would always only go to the regular start time.

[00:31:09] Speaker 02:
It would never cover the time prior to the regular scheduled shift.

[00:31:15] Speaker 02:
So the assertion that somehow these folks got paid for the computer boot up time is inaccurate and not based upon the record.

[00:31:24] Speaker 00:
So is there anything in the record to suggest that if someone submitted one of these punch times and said, when I got to work that day and I went on the computer, the computer was slow and clunking and I couldn't get on it and it took me 15 minutes until I found a workable computer to pay me for the 15 minutes.

[00:31:42] Speaker 00:
Do we know whether those people would get paid or not?

[00:31:44] Speaker 02:
No, the record says that if they did submit a form, it would go to their regular start time.

[00:31:50] Speaker 02:
So if an employee began booting up the computer for a 7 o'clock shift, for example, began booting up the computer at 6.45 and clocked in at 6.54 and then something happened to the computer and they couldn't actually, well I guess that's not the correct example.

[00:32:09] Speaker 02:
The example would be if they started their computer at 6.45 and they couldn't log in until 7.04 and they put in for a time adjustment form, it would go to 7.

[00:32:20] Speaker 02:
They would never be compensated for that time.

[00:32:22] Speaker 02:
And that's in the record from countless appellants.

[00:32:27] Speaker 01:
All right.

[00:32:27] Speaker 01:
Any additional questions?

[00:32:29] Speaker 01:
All right.

[00:32:30] Speaker 01:
Thank you for your presentation.

[00:32:30] Speaker 01:
Thank you, Your Honor.

[00:32:31] Speaker 01:
Appreciate it.

[00:32:32] Speaker 01:
This matter will be submitted.