You and your employees are always on the go, and thank goodness everyone has a smartphone or a tablet now so they can always be reached, right? Well, maybe not. The U.S. Department of Labor is looking into the relationship between work and technology to determine whether employees are being fairly paid for work they perform outside the office on their portable devices. Considering the Obama administration has been vigilant about protecting employees’ rights on wage and hour issues, this may be a troubling sign for employers.
Some employees – typically professionals and management-level employees – are considered “exempt” under the Fair Labor Standards Act, the federal overtime law. This means they are paid a straight salary regardless of how many hours they work and they are not eligible for overtime. However, most employees do not fit into this exemption and are entitled to overtime pay if they work over 40 hours in a week. This exemption gets smaller all the time, as the DOL is pushing to make millions of formerly-exempt, white collar workers eligible for overtime.
The problem comes when employees who are not exempt have access to voicemails, emails and text messages outside the workplace on their smartphones and tablets. Employees may only spend 40 hours a week in the office, but by checking work emails outside of work hours, they technically are working, and the DOL may rule that they should be paid overtime.
This is a tricky situation for employers. It can be difficult to regulate whether employees are checking work emails outside the office because you aren’t there to monitor them. It also can be difficult to make sure these employees are accurately recording this time, as you can’t have an employee punch the clock when he or she is sitting on the couch at home with a smartphone.
The good news is that the DOL has not made any rules yet and is merely in the information-gathering stage. This gives you time to be proactive and think about how you want to address smartphone use by nonexempt employees before the government really starts scrutinizing it. There are a few options you can consider.
First, you can decide whether anyone who isn’t overtime exempt really needs access to work email on their phones or tablets. Not every employee needs this capability, and you can avoid paying unnecessary overtime by simply not giving employees the capability of reading emails outside the workplace unless they really need it.
Second, for nonexempt employees who truly do need to have access to email outside the office, you can establish a system for employees to track their time spent reading work emails outside the office so that they are properly compensated for all of their work time. Perhaps consider a smartphone app that lets employees track time as they read emails. Consult with your employment attorney to decide what strategy will work best for you.