Q. We recently gave some of our hourly employees smartphones so they could be available when they are not at the workplace. Do we need to worry about wage-and-hour issues stemming from their use of these phones?
A. Failing to pay employees for off-the-clock work is one of the more common violations of federal and state wage-and-hour laws. Nonexempt employees? use of smartphones and BlackBerrys (as well as online email access from remote locations) has increased worker productivity. However, it has also substantially increased the risk of off-the-clock-work violations.
It is not unlawful under federal or state law for nonexempt employees to perform these activities outside their normally scheduled hours. What is unlawful is for nonexempt employees to perform these activities without the time being properly recorded and paid in accordance with federal and state minimum wage and overtime laws.
De minimis rule
Employers may be tempted to rely on the de minimis rule?the idea that a few minutes or seconds here and there are considered too inconsequential and needn?t be compensated. However, use caution in relying on this rule. To the extent that off-duty use of smartphones or other electronic devices is an ?integral? part of an employee?s job and is required or permitted by the employer, it is probably compensable.
The only exception to this rule is if the time is de minimis, or of such short duration and frequency as to be no more than a trifle. There is no bright-line rule for what constitutes de minimis work.
Rather, courts typically use a four-part test to determine if off-duty work is of so little consequence that it need not be compensated:
- Amount of daily time spent on the additional activity
- Practical administrative difficulty of recording the additional time
- Aggregate amount of compensable time
- Regularity of the additional work.
The de minimis rule only applies where there are uncertain and indefinite periods of time involved of a few seconds or minutes, and where the failure to count such time is justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee?s fixed or regular working time or practically ascertainable period of time that he or she is regularly required to spend on duties assigned to him or her.
Employers should consider whether the efficiency and productivity improvements to be gained by issuing mobile technology to nonexempt employees outweigh the potential risk for off-the-clock violations.
Have a clear policy
If you are going to allow nonexempt employees to perform work remotely, you need to have clear, written policies in place requiring employees to properly record all time worked. It is also important for everyone to know that working off the clock is against the law and that you prohibited it.
Some employers avoid off-the-clock work by prohibiting nonexempt employees from using smartphones and other remote electronic devices at all during off-hours.
If you do allow nonexempt employees to use these devices, it is not enough to simply have written policies. Employers must also properly train their supervisors and managers. Supervisors and managers need to know their employees and understand which ones are working remotely. Supervisors must ensure that employees are properly recording all hours worked.
Moreover, if the supervisor does not want to pay for work time outside normal work hours, the supervisor needs to adjust his or her own work habits. The problem: Sending after hours emails to nonexempt employees practically encourages them to perform compensable work outside their normal work hours.
Minimizing off-the-clock work
These tips can help minimize off-the-clock claims:
- Implement a clear ?off-the-clock? policy. Require employees to record all time worked regardless of when and where the work occurred.
- Train supervisors never to direct an employee to work off the clock. ?
- If issuing smartphones, BlackBerrys or remote access technology to nonexempt employees, consider requiring them to sign an acknowledgment that they must report all time worked.
- Constantly remind your nonexempt employees that you do not expect them to work outside their normal work hours without recording the time worked.
- If nonexempt employees can remotely log into the company?s email server after hours, periodically audit server access reports to determine if nonexempt employees who are accessing the company server after hours are properly recording their work time.
Staying ahead of creative FLSA plaintiff attorneys will help employers avoid the potential pitfalls of costly and time-consuming off-the-clock lawsuits.
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