Novel wage and hour claims emerged in 2021, arising from employers’ efforts to respond to the COVID-19 pandemic. The coming year also could bring a pandemic-related uptick in the more routine types of wage and hour allegations that comprise the lion’s share of employment class and collective actions. Another factor likely to drive an increase in class litigation is the Biden Administration’s reversal of Trump-era rulemaking.

Off-the-clock claims

Lawsuits seeking compensation for activities undertaken by employees pre- and post-shift are premised on a variety of factual underpinnings. The COVID-19 pandemic has ushered in new ways of working and new potential “off-the-clock” scenarios, which may spur a rise in claims involving both new and familiar fact patterns.

Boot-up time. In October, the U.S. Court of Appeals for the Tenth Circuit ruled that call center employees were entitled to compensation for time they spent booting up their work computers and launching software programs prior to clocking in before each shift, finding these activities were integral and indispensable to their primary duties. In addition, applying the de minimis doctrine, the appeals court concluded the employer failed to establish that, as a practical matter, it would be administratively unfeasible to record or estimate the time at issue.

The employer urged the appeals court to consider the policy implications of finding computer boot-up time compensable “in our modern and digital age, including...

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