March 23, 2012
Most employers who face the combined onslaught of evolving technologies and regulations of today feel that they are caught between Scylla and Charybdis when adopting innovative work practices. What makes even the hardiest of them blanch is the combination of these two present, giving rise to claims for compensation for after hours work to non-exempt employees. Since 86% of the American workforce is covered by the overtime provisions of the FLSA (Fair Labor Standards Act), it is necessary for an employer to have a proper system to classify exempt and non-exempt employees. This is relevant because non-exempt employees merit overtime pay for work performed outside regular work hours. Employer-issued smart-phones, PDAs and tablets which provide 24×7 connectivity and contact over email, text and voice mails and calls make it necessary to consider the obvious overtime liability one might face, when issuing them to non-exempt category of employees, like the Chicago police department.
Employers, who budget for path-breaking work practices utilizing the latest technological advances, sometimes end up incurring penalties for the mails and messages taken after hours by the nonexempt employees issued with smart devices. They also face penalties under FLSA for not recording the overtime details of non-exempt employees along with claims for overtime from these employees. Claiming that the overtime was unapproved will not have any effect on the issue, when the message originated beyond office hours is received by an instrument issued by the employer.
FLSA’s provisions governing overtime:
- Non-exempt employees are paid the federal minimum wage for all hours worked and overtime premium pay of one and a half times the regular rate of pay for any hours worked over 40 in a single work-week.
- The hours worked by a non-exempt employee are determined by using the standard of the actual “hours worked” irrespective of whether the employee is “suffered or permitted to work.” Failure to do so can be contested, with opt-in option for class action, retrospectively for up to 2 – or 3 years.
- The number of hours between the beginning of the employee’s first principal activity and the completion of the last principal activity on any workday are used to compute the actual hours worked.
- The onus of maintaining accurate records of overtime work lies on the employer and not the employee.
While employers are still struggling to determine the exempt roles against nonexempt to avoid possible exposure to misclassification, the additional burden of controlling the employees’ use of technology outside work hours increases the risk. But then, paying overtime at 1.5 times for an employee’s time reaching the office (traditionally exempted) because the employee had checked their emails at home before heading to the office could prove really expensive to any employer. Claiming that an employee could not have spent a lot of time on checking mails and invoking the de minimis exemption (saying the time spent is insignificant) may not prove effective in the face of clear time-stamped communications, and the ambiguity surrounding the time spent actively on responding to the communication. Since the same rules apply even with the smart devices owned by an employee, though not provided by the employer, it is necessary to mitigate the risk through pre-emptive policies and measures.
Ways to Ensure Protection:
Organizations should establish a clear policy on the use of the devices (own or company-issue) and establish guidelines restricting when and how the employees use technological tools and issue guidelines as to when and how to record time spent using the devices.
- Advice non-exempt employees that they are not expected to spend more than a minimal amount of time checking messages from outside the office.
- Ask them to report any time spent, outside work checking e-mails when it exceeds a minimal amount, on their time sheets.
Some of the processes and policies listed below may also be chosen for implementation:
- Conduct a wage-and-hour audit to clearly establish the reliability of the exempt/non-exempt classification.
- Train all employees on the policy, whether exempt or non-exempt.
- Train supervisors on ways to avoid encroaching into the employee’s time after regular office hours, unless absolutely essential. An employer has recently requested Blackberry to turn off the mail server out of office hours.
- Issue devices only to the FLSA exempt category of employees unless there is a bona-fide reason for issuing them to the non-exempt category.
- Obtain a letter from all the employees seeking permission to use the device, and keep it on file.
- See that the employee does not need to use the device after office hours.
- If a non-exempt employee is knowingly issued with a device to meet the role requirements, detailed records of all the activities detailing the date, time, duration of call with a description of the content – in a delegation of duties necessary to meet FLSA requirements.
- Bills for the device must be maintained and reviewed – and cross-checked with the claims made by the employee.
- Establish rules prohibiting the use of the device when off-duty, clarifying the employee’s entitlements and the expectations of the employer with respect to use of the device and the maintenance of records.
For obvious reasons, the above list does not contain action item which need to be implemented. They need to be customized to individual roles, depending upon the peculiar needs of the business and the demands of the operations being handled by that role.
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.