Published in the Union Leader (10/12/2015)
Q: Many of my employees use electronic devices to respond to work-related emails, texts, and voicemails outside of work hours. I like the productivity, but am concerned about issues with overtime pay and record-keeping. How should I address this off-duty mobile work so that I don’t have to worry every time I see an email was “Sent from my iPhone”?
A: The prevalence of smartphones, tablets, and laptops has created a 24/7 workday, with the virtual office extending to wherever an employee can get a wireless signal. This means that employees at any level can – and in some cases, are expected to – constantly monitor and respond to communications on their electronic devices. However, with this increase in responsiveness and productivity comes an increased obligation on the employer to properly record and pay the employees for this after-hours work.
This is of particular concern with non-exempt employees. Under the federal Fair Labor Standard Act (FLSA), a non-exempt employee’s hours must be tracked, and they are entitled to overtime pay of not less than 1.5 times their regular rate of pay after 40 hours. Unless it is considered “de minimus,” all work must be compensated for by the employer, and this will often include checking emails, responding to texts, taking work home, and taking calls off-site and after-hours.
Unfortunately, there are no hard and fast rules for what constitutes compensable work in this area of “mobile” business. The Department of Labor’s Wage and Hour Division recently announced a request for information about “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.” But, until specific guidelines are announced, employers should take certain precautions to limit their exposure to claims by non-exempt employees for unpaid wages and overtime related to portable device work:
- Ensure that your employees are properly classified as exempt or non-exempt based on their job duties. Employers should take specific note of the recently proposed changes to the so-called “White Collar” exemptions. These changes could affect the exemption status of higher level employees who are expected to regularly work and communicate outside the office via their smartphones.
- Have a policy in place to address unauthorized work, work off-the-clock, and recording/reporting when such work is done. This policy should specifically address the use of portable electronic devices, and include disciplinary actions for employees who violate the policy.
- To the extent practicable, do not issue smartphones to non-exempt employees or allow them to access the company’s network or email system when away from the office. If these employees must have company-issued smartphones, or if your employees can sync up their device with the network, require the employees to keep detailed time records of their activities.
- Educate the managers and supervisors in regards to sending communications outside of normal work hours. There are some policies, such as “delayed deliveries” and “email curfews,” that can safeguard against non-exempt employees performing unauthorized work off the clock.
There will be official DOL regulations on this matter, and sooner rather than later. Getting a jump on a “mobile” work policy will help ease the transition for your employees – and your business – down the road.
Kenton Villano can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, P.O. Box 888, Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.