Wage & Hour Words of Wisdom: Beware of “Connectivity” Overtime for Non-Exempt Employees
The explosion of smartphones and ease of remote connectivity has fundamentally changed the landscape of the workplace, but is it all positive for employers? Not so fast—despite productivity enhancements, beware of the increased potential wage and hour risks. Modern technology has created a virtual 24/7 connectivity for employees that arguably is out of control. There is no question that the nine-to-five work day as we know it has been jeopardized, spawning the collateral risk of significant overtime pay liability for employers. So, the next time you grab your iPhone on the weekend to email (or text) your non-exempt colleague about some work “stuff,” you might just think twice.
The Law and the Risk: Under the Fair Labor Standards Act (“FLSA”), as with many state wage and hour laws, employers are required to pay all non-exempt employees at least the minimum wage for all hours worked as well as time-and-one-half pay for all hours worked in excess of 40 in a work week. So, for many employers, allowing their non-exempt employees to remain connected to their work emails during otherwise non-working hours could create significant legal risks involving potential overtime pay. As long as the employer knew, or even should have known, of the employee’s after hours email “work,” it could be on the hook for additional pay. The FLSA makes employers accountable for “suffering or permitting” a non-exempt employee to work.
The Magnitude of the Risk Increases Exponentially when Class-Based Lawsuits Result: In today’s workplace, when employees sue for wage and hour violations under the FLSA, they sue not only for themselves, but for all others “similarly situated”—a so-called “collective action.” The concept of these class-based lawsuits has vaulted wage and hour claims to the forefront of the mind of every plaintiff’s employment lawyer in the country. Just in the last couple of years, several major corporations, including T-Mobile, Verizon, Black and Decker and Lojack, have felt the sting of FLSA collective actions, claiming failures to compensate employees for after-hours work performed using mobile devices. Of course, the more employees an employer has, the more vast the potential liability. Perhaps even scarier is that, in such cases, the plaintiff’s attorneys’ fees become enormous and extremely relevant under a fee shifting statute such as the FLSA.
Minimizing Risk through Time Tracking: Time-keeping practices have become even more critical to employers who provide (or allow) their non-exempt employees access to company email through either a company-issued or personal mobile device. Employees who spend time reading and responding to emails on their smartphones after work or on the weekends are indeed doing “work” and likely need to be compensated for their time, unless the amount of time spent checking the emails is “de minimis.” While there is no bright line rule to determine what is considered de minimis, the more sporadic and short in terms of duration (ideally, less than five to 10 minutes), the greater the odds that a court or the Department of Labor finds the time to be de minimis and, therefore, does not count it as hours worked for overtime purposes. 
Taking Action to Manage, or Avoid, Risk: The best course of action could be for employers to refuse to issue smartphones to non-exempt employees or to refuse access to the company’s email outside of regular work hours (such as, via their own personal smartphones or VPN access). Yet, such a policy is not going to be practical, or desired, by many employers. Alternatively, and perhaps more practical, the employer can establish a well-drafted written policy defining the parameters for the employee’s use of company-issued or personal devices to access work email systems. Any such policy should require that non-exempt employees document and report all of their hours worked, including any time that they spend reviewing and responding to work-related emails and working remotely from home. The employer must communicate a clear process for employees to report such after-hours work.
Don’t Just Write a Policy—Train, Educate, and Enforce Consistently: To truly manage and minimize these risks, employers must train their entire staff, exempt and non-exempt employees alike, on the relevant policies and the proper use of mobile devices for business-related purposes. In addition to being advised of the company’s policy, non-exempt employees should be trained on the proper procedures for using mobile devices for business purposes during non-working hours (and, of course, be trained on the proper procedure to report such time worked).
Exempt employees, especially those who supervise non-exempt employees, should be trained on the parameters and proper procedures for communicating with non-exempt employees, whether by telephone or email, during non-working hours. If a supervisor requests that a non-exempt employee respond to an email or participate on a telephone call for business purposes during non-working hours, the supervisor should be trained to document this request and confirm that the employee was properly compensated for this working time.
To be effective, any remote access policy must be consistently enforced. If a non-exempt employee works remotely during non-working hours without prior approval from her supervisor, she should be disciplined for violating the policy but still receive the proper pay for her actual hours worked. Similarly, if a supervisor requires a subordinate to respond to emails during non-work hours, then the supervisor must also be disciplined if such an action violates the remote access policy.
Mobile device connectivity is not just a trendy flash in the pan—it’s here to stay and will become more commonplace. Nonetheless, it is an issue that can be addressed with the age-old, tried and true tenets of a solid risk management practice: understand the nature of the issue, develop and implement a written policy to minimize legal risk, educate and train the workforce, and consistently follow and enforce the policy.
