HR Management & Compliance

Will a Smartphone Call Count as Overtime? DOL Is Exploring the FLSA Issues

Smartphone use has complicated employer calculations of working time and overtime for years, and it now appears to have caught the interest of the U.S. Department of Labor, which recently announced plans to collect information on how the use of smartphones impacts hours worked under the Fair Labor Standards Act.

In its spring 2015 regulatory agenda, DOL indicated that it will seek input from stakeholders on the topic by publishing a request for information in August. (See the agency announcement here.)

The announcement said:

The Department is seeking information from stakeholders on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours … .

There is no formal rulemaking proposed at this stage; the agency merely indicated that it is looking for information on the subject. Whether that information leads to a proposed rule remains to be seen. The RFI will appear in the Federal Register when it is published in August.

How Things Currently Stand

Cell phones, iPhones, BlackBerrys, laptops, the Internet, and a host of other technology developments have changed how, where and when work is done. The FLSA generally mandates that employers pay nonexempt workers for all hours worked, and overtime for all hours worked in excess of 40 hours in a work week. Employers already struggle with how to track the hours their employees are working; and as the lines between work and home have blurred that has only gotten worse.

Time spent working outside the office on mobile devices and computers by nonexempt employees can complicate working time determinations made by employers under the FLSA, and could ultimately affect overtime determinations. There has been litigation around this issue, and many employers already have policies in place regarding off-hours use of technology by overtime-eligible employees. Additional agency scrutiny is unlikely to win fans among employers.

Employer Best Practices

Even if DOL decided to wade into the debate over working time and smartphones, any proposed changes are likely a long way off. In the meantime, there are steps employers can take to protect themselves under the current guidance on the topic. Thompson Information Services’ author and employment law expert Shlomo D. Katz recommends these best practices for employers that would like to reduce their exposure to overtime claims:

  • Place controls on your network so that it cannot be accessed remotely by employees who are supposed to be off the clock.
  • Regularly remind employees of company policies against performing unauthorized work, and follow through with disciplinary action.
  • Watch for tell-tale signs of off-the-clock work. For instance, when an employee turns in a project on Monday morning that wasn’t completed at close of business Friday.
  • Suspend the email or remote access privileges of employees who violate policies regarding unauthorized work.
  • Suspend telecommuting privileges of employees who claim unauthorized overtime.
  • Confiscate employer-owned devices if they are used to perform unauthorized work.
  • Unless prohibited by privacy laws, collective bargaining agreements or other authorities, monitor employees’ access to and use of the network and email.

(For a full analysis of the wage and hour implications of smartphone use under the current laws and regulations, see Thompson Information Services line of FLSA handbooks and guides.)


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