Rare appeal may shed light on compensable time for remote employees

In the pre-pandemic days of brick-and-mortar work locations, determining a non-exempt employee’s compensable time was not very complicated or difficult to monitor.

It started when the employee arrived at work and clocked in. It ended when the employee clocked out and left the facility.

But according to Google, working remotely has increased five-fold since 2019. Currently, about 40 percent of all employees work remotely at least one day a week.

When does the compensable workday start and end for those employees?

Two federal courts of appeal – the U.S. Courts of Appeal for the Ninth and Tenth circuits – have said that it starts when the employees boot up their computers and log in at the start of work, and ends when they log out and shut down.

But a federal judge in Ohio disagreed, and now the U.S. Court of Appeals for the Sixth Circuit has agreed to weigh in on the issue.

The Sixth Circuit decision, when issued, may provide clarity for some employers, and confusion for others as the law on this issue continues to evolve.

Before we go on: “Preliminary and postliminary” versus “integral and indispensable”

As of June 1946, the U.S. Supreme Court had ruled that compensable activities under the Fair Labor Standards Act included all physical or mental exertion required by an employer and pursued for the benefit of its business.

In the last half of 1946, employees (or, should I say, their lawyers?) filed more than 1,000 FLSA lawsuits seeking payment for uncompensated time, including time spent walking to and from a jobsite.

In response to this situation, Congress passed the Portal-to-Portal Act. That law includes a declaration that “activities … preliminary … or postliminary to [an employee’s] principal … activities” are not compensable.

On the other hand, if the activity is both integral and indispensable to the performance of the employee’s principal activities, then it is compensable time.

Lott v. Recker Consulting

In 2025, a group of employees who worked from home filed suit in a federal court in Ohio, seeking pay under the Fair Labor Standards Act and Ohio wage-hour law for time spent “booting up and logging into their computers at the start of the day, booting up and logging in after their meal break [sic] and shutting down their computer [sic] at the end of the day.” (They asserted other claims in addition to these.)

Before you say, “Come on, who cares about a few minutes?” keep this in mind:

• It takes only one employee to file a class or collective action lawsuit.
• A few minutes of compensable time, multiplied by 250 work days, multiplied by hundreds or thousands of employees, adds up.
• Our brief trip into the 1940s should leave no doubt about the willingness of plaintiffs’ attorneys to take such cases.

In the Lott case, the employees’ principal activities were to field calls from medical patients, responding to their needs or directing them to the appropriate medical departments. This required that the employees access certain computer programs and applications.

Judge Douglas Cole found that the following activities were “preliminary or postliminary, and therefore noncompensable under the FLSA”:

[T]urning on or waking up the computer; entering a username and password to access the computer; dual authenticating . . . ; opening the timekeeping system, accessing a VPN, on the front end; and shutting down the computer, locking the screen, or putting it in sleep mode, on the back end.

According to Judge Cole, “While all those activities may in some sense be indispensable, they are not integral to the employees’ principal duties of answering inbound calls.”

On the other hand, Judge Cole found that the time spent opening and operating work applications in connection with handling calls was “integral and indispensable” and therefore compensable: “These include accessing Defendants’ phone system, workflow system, directory database, or a client’s [electronic medical record] system.”

The judge found that the workday for the employees began when they accessed a program or application in the latter category and ended when they closed out of the last one.

Based on these findings, Judge Cole granted the employer’s motion for summary judgment as it related to startup time, but denied it as it related to “program and application” time.

The judge recognized that the Ninth and Tenth circuits had held that booting and logging into a computer, when performed by employees working in a call center, were compensable activities. But he (correctly, in my opinion) said that, although those activities were indispensable for the employees to be able to perform their principal duties, they were not integral.

Normally, a ruling like Judge Cole’s would mean that the claims related to tasks found noncompensable would be dismissed and that the surviving claims would go to trial.

However, in this case we had an interruption.

The employees, without waiting for the ultimate outcome, asked the Sixth Circuit to rule on the following question, in addition to a procedural question:

When does the compensable workday begin and end for employees who work exclusively in a remote setting by fielding phone calls using employer-provided software programs and applications?

(The employer didn’t oppose the request.)

This is known as an “interlocutory appeal.” On April 7, the Sixth Circuit agreed to decide this issue. Once it makes its ruling, the case will be sent back to Judge Cole for dismissal, or trial, or some other appropriate outcome consistent with the appellate decision.

Civil procedure nerd alert: The interlocutory appeal

Orders entered during the course of a lawsuit typically cannot be appealed until a final judgment has been entered on all the claims in the case.

If a party loses a discovery dispute, or loses on a motion for summary judgment, it must wait for the case to end before appealing.

But most rules have exceptions, and an interlocutory appeal is an exception. A case (or an issue related to a case) can be appealed before a final judgment if two requirements are met:

• First, the trial judge certifies that the order involves a controlling question of law, as to which there is a substantial difference of opinion, and the resolution of that difference may aid in resolving the lawsuit.
• Second, the appeals court determines that the order is worthy of its consideration and agrees to accept the appeal.

Clearing both hurdles is no easy trick.

Back to compensable time: What employers should do now

The Sixth Circuit decision, whichever way it goes, should provide clarity for employers of remote employees who work in the Sixth Circuit states of Kentucky, Michigan, Ohio, and Tennessee. If the court answers in favor of the employer, that will be good news and will create a split in the circuits. That would open the door for possible Supreme Court review and resolution of this issue once and for all.

Employers whose remote employees work in the Ninth and Tenth Circuit states should continue to assume that even boot-up and log-off time is compensable, in addition to everything in between.

That leaves about 32 states where the appeals courts have not addressed this issue.

But this much is clear for employers of remote employees, wherever those employees are:

• Identify your remote employees’ principal duties.
• Identify the activities that are indispensable and integral to the performance of those duties.
• Identify the activities that are preliminary or postliminary to the performance of the principal duties.
• If your courts have addressed the issue, follow what your courts have said.
• If not, depending on your tolerance for risk, draw a line somewhere between the two.
• Determine whether any state laws have an impact on that line.
• Document your decision-making process. In a worst-case scenario, being able to show a good faith effort to comply with the law can come in handy.  

And please don’t hesitate to contact a member of our Wage and Hour Compliance & Litigation Practice Group if you need assistance.