Are your nonexempt employees sneaking a peek at work-related e-mail while off the clock? asks Tammy Binford, writing on HrHero.com®. Watch out: There could be tricky wage and hour dangers ahead.
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Ever suspect your employees’ bosses may be pressuring them to respond to calls and e-mails after the workday ends? Have loyal employees trying to help out after hours and off the clock? If those thoughts keep you up at night, it’s time to make sure your employees’ smartphones aren’t putting your organization at risk of violating wage and hour laws.
Mark E. Tabakman, a partner with Fox Rothschild LLP in Roseland, New Jersey, warns employers of an “explosion of class-action cases” stemming from overtime-eligible employees using smartphones to extend their workday without those after-hours tasks being compensated.
‘Similarly Situated’ Dangers
“It only takes one person to start a whole mess for you,” Tabakman says, since U.S. Department of Labor investigators don’t stop with the complaining employee. They also look at how many others are “similarly situated,” he says. A single employee’s complaint can turn into a class action when all the other similarly situated employees are included.
Just a few minutes a day over months or years can add up to financial disaster if an employer has a number of employees regularly using their phones for uncompensated work.
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Tabakman recently conducted a BLR webinar titled “New Wage-Hour Solutions for Managing Travel, Training, On-Call Time and Smart Phones” in which he covered several wage and hour issues, off-hours smartphone use among them.
Tabakman calls the extension of work time made possible by smartphones and other electronic devices a new danger for employers that calls for monitoring and a solid policy to hold down the threat of uncompensated overtime claims from employees who are not exempt from the federal Fair Labor Standards Act (FLSA).
‘Implicit Compulsion’
In the last several years, the courts have seen a flood of lawsuits in which groups of employees claim the time they spend reading and responding to e-mail should be considered work time and therefore paid. In many cases, they’re successful, Tabakman says.
“Think about ‘implicit compulsion.’ A supervisor sends an employee—a subordinate employee—an e-mail Friday night asking for an opinion, asking for advice, asking for an answer,” Tabakman says. The supervisor sends an attachment and says, “‘Read this memo, give me your comments on it.’ … You’re a subordinate employee. Who among us is going to say to our boss, ‘I’ll get to it Monday’? Very few people. The world is so competitive. The workplace is so competitive.”
Tabakman points out that employees are often expected to check their e-mail, and it’s not too much of an overstatement to say many employees today are under “electronic siege” because they are required to respond to after-hours messages.
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‘De Minimis’ Defense Often Ineffective
It’s tempting to think that just a few minutes of after-hours work won’t cause a problem because the time is minimal, but Tabakman points out the danger of that thinking. When employees sue, claiming they should be compensated for after-hours smartphone work, the employer typically uses the de minimis defense. De minimis means very little, a trifle, just a minute or 2. The employer maintains that the time spent is de minimis, but it isn’t. Just 5 minutes a day adds up to almost a half-hour a week.
“There are cases holding that a half hour a week is not de minimis,” Tabakman says. “The so-called de minimis defense, nine times out of 10, it’s a losing defense. Beware.”
Tabakman also warns employers to think about state laws in addition to the FLSA. Also, employers should be aware that some employees are checking work e-mail at home whether they’re told to or not.
Just because the employer doesn’t require employees to stay tied to their phones doesn’t eliminate legal risk. The law defines “work time” as the time an employee is “suffered or permitted” to work.
So, an employer doesn’t have to require employees to answer e-mail and perform other tasks off the clock to run into trouble. Merely permitting that work without counting it as compensable time puts the employer at risk. Thus, employers may be “sitting on a time bomb,” Tabakman says, if nonexempt employees are taking calls, checking messages, responding to e-mail, etc., without getting paid.
In tomorrow’s Advisor, sample policies on cell phones, plus an introduction to the complimentary webcast from SilkRoad, Coming Alive: Creating an Engaged Workforce.
How does this apply to exempt employees? Often this is an area, due to the high competitive nature of some businesses, where abuse can really occur. At least with an non-exempt employee, there is the threat of unpaid wages. With exempt employees, there doesn’t appear to be that threat. Thus there is pressure to work around the clock.