Contributed by Caryl Flannery
In the old days, we worked at work and did home things at home. Then came fax machines, cell phones, e-mail, and remote access and those lines were blurred or even erased. While technology has made our lives easier in many ways, it can be a landmine for employers trying to comply with wage and hour issues. If your non-exempt employees have a company-issued cell phone, can access their work e-mails through their own devices, or are given remote access to your organization’s document system, it’s possible that they are performing compensable overtime work without being compensated.
Non-exempt employees who work more than 40 hours per week (or 8 hours per day in some jurisdictions) must be paid overtime. Work performed for the benefit of the employer by the employee is counted as “hours worked” regardless of where it is performed. Turning a blind eye to employees who work from home and don’t report their hours, even when there is a policy prohibiting such behavior, does not absolve an employer from compensating employees for that time. All work that is “suffered or permitted” counts as hours worked, including work that the employer requested be done, knew was being done, or should have known was being done.
There is some flexibility in the rules: minor, non-essential, and short duration work (de minimis work) is not considered “hours worked.” Go down that road cautiously however, because there is no bright-line rule as to how much is too much. Reading a single e-mail? Probably de minimis. Checking an e-mail and reviewing an attached document? Probably not. Checking multiple e-mails throughout the weekend? Harder to call. The determination is made using a variety of factors including how much time it takes, how often it happens, whether the employee is required or expected to do it, and whether the activity is integral to what the organization does. Be aware that multiple incidents of de minimis work across a job category or the company in general increases the potential for collective or class action claims and DOL enforcement actions.
Ultimately, it’s the employer’s responsibility to maintain accurate records of employee time. Failure to do so makes it much easier for an employee to prove a violation. The following are a few suggestions for controlling unpaid “Off the Clock” work.
• Don’t give non-exempt employees remote access to work e-mail and systems.
• Have a strong policy about remote work. Either disallow it completely or set clear guidelines for reporting such work. Educate your employees on the policy.
• Make sure that all “off the clock” time gets put back on the clock. Require that all time away from work be reported along with the rest of the time for that week.
• Have employees affirmatively verify their time prior to being paid and/or find a way to add “mobile time” as a separate line item in your time reporting system.
• Emphasize that your “no overtime without prior approval” rule includes work performed outside the office.