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Technology and the Non-Exempt Worker – Are You Violating FLSA?

Posted by Lauren DiChiacchio on Jul 12, 2013 9:47:00 AM

Staffing services, healthcare staffing, job seekers, career guidance We work too many hours in America. At least 134 countries have laws setting the maximum length of the work week; the U.S does not. According to the Center for American Progress, 85.8 percent of males and 66.5 percent of females work more than 40 hours per week.

We also don’t unplug. A typical worker can leave the office and use technology to stay connected. We check emails at dinner and while watching TV and we can log in to our office computers to work on projects until late into the evening and on weekends.

It seems the traditional 9-5 work day is becoming a thing of the past. Many organizations now simply expect that employees are "always on." Even if it's not overtly expressed, with a depressed jobs market, employees want to show that their committed and will do more in an effort to avoid being terminated.

For exempt workers, those not entitled to overtime pay, working beyond normal business hours is not a legal issue. The issue around 24/7 connectivity for non-exempt workers can be a challenge for HR because it may be a wage and hour violation under the Fair Labor Standards Act (FLSA). Even something as innocuous as checking work email can lead to lawsuits.

T-Mobile Example

In 2009, T–Mobile was the recipient of a class action lawsuit asserting claims for overtime wages. They claimed they were owed pay for time spent responding to emails after work hours.

Employees had been issued company smart phones. They regularly received emails and text messages from customers and supervisors and were required to respond to them in a timely manner.

When they reported those hours on their time sheets, management told them they wouldn’t be paid for that time and that they should expect to respond to messages as part of the company’s “standard business practices.”

The FLSA is clear that all work (including overtime) worked by non-exempt employees needs to be paid for even when it’s voluntary. While employers are not required to compensate employees for de minimus time, time spent using smartphones and the like is not necessarily de minimus.

T-Mobile is not the only company to face this type of lawsuit. CB Richard Ellis Group, Inc. and Groupon are among the growing number of companies being sued for the same reason.

What Can You Do

Don’t give devices to non-exempt employees. If it is at all practical, do not issue non-exempt employees smart phones or provide them remote access. Nothing can stop employees from performing work on their own phones and computers, but by giving them smart phones, it sends the message that they’re expected to work off the clock.

Institute an approval policy. The policy should require that all non-exempt employees must obtain approval for any overtime including the use of remote technology. 

Train managers. Ensure that managers understand that requiring employee accessibility off working hours may implicate wage and hour laws, and that overtime spent on what could be considered off-hours should be accounted for in work schedules or budgets associated with overtime pay.

Train employees. Make sure that non-exempt employees who do need to be accessible, i.e. nurses, IT personnel, are aware of the overtime policy and that they should limit any off-hour work if possible. They also need to be aware that they must track and report any time spent on calls or sending emails, etc. Then you can choose to make adjustments to upcoming work schedules or pay the time as overtime.

Finally, alert employees who do not need to be accessible after work hours that they should not use remote technology and that the phones are turned off and no one should log in remotely.

Mobile technologies are making it easier and easier for all of us to stay connected in ways that we never dreamed of only a few years ago. Therefore, this issue is not going away and you need to make sure you're aware of the FLSA requirements and that you have policies in place to protect your organization.

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