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Take a Vacation from Smartphones and Overtime Laws

by Sarah McAdams

Do you keep your personal Blackberry or iPhone on your bedside table, yanking yourself from deep sleep every time a new message dings in? You’re not alone, sad addict. I, for instance, am typing this on a Saturday at a picnic table in my backyard.

For years, employers have most frequently issued mobile devices — including laptops, pagers, cell phones, and PDAs (personal digital assistant) — to employees who are exempt from overtime. This trend has had obvious implications for employees’ work-life balance — but there are additional legal reasons to consider curbing off-hours virtual toiling.

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“For [exempt] individuals, working late or on the beach is no problem because, by definition, exempt employees are not subject to the restrictions of the overtime laws,” says Anthony Oncidi, chair of the Los Angeles-based labor and employment department at Proskauer Rose LLP. “But as instantaneous communication has become commonplace in virtually every industry, increasingly non-exempt employees are beginning to receive company-issued communication devices. The late-night e-mails sent and received by these employees raise serious concerns for employers.”

Oncidi believes that certain state and federal wage laws are likely to trigger the next wave of employment litigation among employees who are putting in more hours off-premises with the use of mobile technology.

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Indeed, about 115 million employees — 86 percent of the workforce — are covered by federal overtime rules, according to the U.S. Department of Labor (DOL). While no one tracks precise figures, lawyers on both sides estimate that companies have collectively paid out more than $1 billion annually to resolve these wage-and-hour claims, which are usually filed on behalf of large groups of employees.

The bottom line, Oncidi says, is that the collision between 21st-century technology and early 20th-century work rules requires greater vigilance among employers in managing their mobile workforce.

At the very least, create a policy
The first step, Oncidi says, is creating a policy:

  • Clearly define responsibilities.
  • Ensure non-exempt employees know when to power down. “When supervisors decide to give non-exempt employees [PDAs] and remote access, they need to have a clear policy in place that these workers are not expected to check e-mail or return phone calls outside of normal business hours unless they have advance authorization,” he says, adding that even if hourly employees violate that directive, the laws require that they still be compensated for their time spent working (although they can be reprimanded).
  • Create timekeeping mechanisms that force employees to track, submit, and verify the accuracy of their hours, including remote hours, daily.
  • Make clear what you will and will not pay for in regard to remote-office technology and equipment, Internet, and phone connectivity.
  • Keep track of all employees working remotely and their remote devices so that if litigation should arise, the company knows what external sources exist.

But perhaps the biggest problem stems from companies issuing PDAs to non-exempt employees, says John Zaimes, head of West Coast labor and employment for Reed Smith. “That almost by definition means that they are expected to use them after working hours with some regularity, whether it be to retrieve messages from supervisors or from customers, vendors, and the like. So at the very least, there should be a company policy that work undertaken by employees at the instigation of others outside the company that lasts more than, say, 15 minutes in a day should be treated as overtime by the employee, and he/she should put in an overtime request for that work.”

Or easier still: Don’t give PDAs to non-exempt employees in the first place. Perhaps they will then have at least a decent shot at finding balance.

Sarah McAdams has reported on HR for a variety of publications, including the Journal of Employee Communications Management, Corporate Legal Times, and The Ragan Report.