914-417-1715 | Email Us

In the News

Wage and Hour

Employers Need Policies to Address Employee Overtime Via Latest Technology

By Genevieve Douglas

Smartphones and other devices have made it easier than ever for employees to perform work anywhere, anytime, but such activity also can make employers liable for unpaid overtime, warned management attorney Melissa Fleischer, the founder of the HR Learning Center.

Employers must make sure to address employees’ work after hours via email, texts, and instant messaging to avoid liability under the Fair Labor Standards Act, Fleischer told BNA March 4.

“Being in the 21st century where we can instantly respond to emails, IM’s, text messages, etc., is amazing, but it has its downsides as well,” she said. “One of these is with regard to the wage and hour laws because now employees always seem to be on the clock.”

According to Fleischer, employers are required to pay employees for after hours work that is conducted virtually. She recommended that employers implement policies prohibiting employees from working overtime without written consent from their managers, and those policies should clearly specify that responding to email or texts after hours constitutes overtime work.

However, Fleischer said that employers are in a tough situation, because if an employee disregards this policy and responds to emails after hours, the employer cannot discipline the employee by refusing to pay him or her the overtime incurred. “Once the employer is aware that the employee has performed the work, the employer must compensate the employee for such work even if it was done in violation of the employer’s policies,” she said.

Several Cases Involving Smartphones.

“The legal peril for employers is when they do not compensate employees for this after-hours work,” Fleischer said.

There have been an increasing number of cases that have been brought as class actions in which employees have alleged that they are entitled to back overtime that was not paid to them as a result of their responding to emails and text messages after hours, she said.

Those cases include:

• a case against T-Mobile where employees alleged they were required to use smartphones to respond to customer concerns and complaints after hours;

• a case brought by employees of CB Richard Ellis who alleged they were issued and required to carry Blackberry smartphones to keep in touch during hours they were off; and

• a recent case by a sergeant with the Chicago Police Department who alleged that he and other police officers were required to use their Blackberry smartphones to perform work off-duty.

Fleischer said beyond a policy prohibiting overtime by nonexempt workers, one of the best practices for employers is to not issue smartphones or other technologies to such workers.

Human resources can best help employers avoid FLSA litigation by providing training to employees so they understand that using virtual correspondence for work outside of business hours is in violation of the employer’s policies, she said, even if it is done on their own phones.

By Genevieve Douglas

Copyright 2013, The Bureau of National Affairs, Inc.

Reproduced with permission from Human Resources

Report, 31 HRR 247 (March 14, 2013). Copyright 2013

by The Bureau of National Affairs, Inc.

(800-372-1033) <http://www.bna.com>