Smartphones have changed the way we work. No matter where we are, what we’re doing, or what time it is, we have the ability to stay constantly connected. While it seems like this new technology would be nothing but beneficial for employers and productivity, it doesn’t come without its problems.
The Fair Labor Standards Act requires employers to pay non-exempt employees 1.5 times their regular rate of pay for all hours worked over 40 hours in any given workweek. Overtime, defined as any amount of time an individual spends carrying out work-related duties outside of the set 40-hour workweek, was easy to monitor when employees simply clocked in and clocked out.
The use of smartphones by non-exempt employees to check and respond to work emails, calls, and text messages outside of normal work hours is opening employers up to liability for the violation of FLSA overtime laws.
Hours worked is generally defined as any hours spent by employees participating in tasks related to their work that benefit the employer. The FLSA treats de minimis work or insignificant periods of time as non-compensable, but has found that electronic smartphone communications on the aggregate may amount to substantial work time for employees.
Employers can become liable for overtime if:
- The employer requires the employee to work overtime.
- The employer allows the employee to work overtime.
- The employer has knowledge or constructive knowledge of the employee working overtime and doesn’t prevent it.
If an employer is found to be in violation of FLSA overtime laws, they may be liable for lost wages (plus interest), liquidated damages, and attorneys’ fees plus costs.
So, the question is, “How can you prevent putting your company in this position?”
- Make sure to properly classify employees as exempt or nonexempt based on their job duties and salary.
- Limit issuance of mobile devices to employees are truly exempt and prevent non-exempt employees from having remote access to work communications.
- Require employees to keep detailed time records of work-related activity, including dates, times, and description of communication.
- Develop a strict policy against performing unauthorized work, and follow through with disciplinary action against employees in violation.
- Monitor employees’ access and use of remote communications.
- Limit your communication with nonexempt employees to office hours.
- Provide a system where employees know to only reply to emails labeled urgent.
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