By: Robert J. Orelup
Does your company provide remote access to e-mail for all or some of its employees to read and respond to work-related emails after hours and on weekends? Does your company issue “PDA” or smartphone devices such as a Blackberry, Android or iPhone to its employees and require its use outside the office? If the answer is “Yes” to either of these questions, as an employer you should know that state and/or federal law may require additional payment for time spent by employees checking and responding to such work-related emails.
Under the federal Fair Labor Standards Act (“FLSA”), non-exempt employees generally need to be compensated for time spent working and staying connected to the workplace, even through emails. Moreover, the FLSA has strict minimum wage and overtime pay requirements for compensable time in which employers and employees covered by the FLSA are not free to negotiate to avoid such payments.
Remember, while smartphone use by employees can be a significant benefit to an employer, there are legal issues to consider before allowing an employee to stay connected to the office, even if the smartphone is not a company-issued device. Failure to properly track and pay such wages to eligible employees could potentially expose the employer to substantial damages on both the state and federal level. Recently, there have been several lawsuits by current and former employees alleging unpaid wages for time spent responding to emails outside of regular work hours. In addition, enforcement of wage and hour compliance has become an added focus of agencies such as the U.S. Department of Labor (“DOL”) . In fact, in the spring of this year, the DOL even announced a free smartphone application specifically designed to assist employees in keeping track of their hours worked and wages earned.
So with the strong likelihood that a smartphone continues to be as much of an integral part of a work place as a desk, PC or laptop computer, what can an employer do to protect itself against such claims? First and foremost, employers should establish a written company policy for their employees’ use of smartphones and similar hand-held electronic devices. Such policy could state that smartphones will only be issued to “exempt” employees (who do not qualify for overtime pay under the FLSA requirements). The policy could also limit the use of smartphones to designated work hours only or require prior supervisory approval for use outside of normal work hours. And finally, any such policy should require strict record-keeping by “non-exempt” employees of all time spent on a smartphone for employment-related purposes.
As with all employment policies, it is vital that any smartphone policy be implemented in a clear and concise manner, communicated to all employees and uniformly enforced by management.
Bob Orelup is a partner with the law firm of Drewry Simmons Vornehm, LLP and focuses his practice on labor and employment and construction law. If you have questions, please contact Bob at 317-580-4848 or via email at rorelup@DSVlaw.com.