Off The Clock, On The Hook: Unintended Consequences Of Working Remotely

Sitting down to dinner but still have a long to-do list from the office? Hear your work e-mails pinging as you watch the game? Not a problem that you can’t handle with your smartphone or tablet. Whatever your take on this 24/7 connectivity, it is undeniable that the proliferation of mobile devices has made working away from the office easier and perhaps expected by employers (and clients). While such a policy may result in an increase in productivity, it can also create a legal risk for employers, namely, unexpected claims for overtime pay. 

The Fair Labor Standards Act requires “non-exempt” employees to be paid overtime compensation for work performed for the employer’s benefit in excess of 40 hours per week. The law requires employees to be paid overtime for work that their employers either knew, or should have known, they were doing.

Significantly, while executives, managers, and administrators are usually exempt from overtime pay, salaried workers and non-management workers in the construction, secretarial, maintenance and clerical fields are usually not. Any work done remotely by a non-exempt employee could push that employee’s hours beyond the 40-hour threshold and trigger an FLSA suit. Though checking work-related e-mail for as little as 15 minutes per day may seem innocuous, this adds up to over 90 overtime hours in the course of one year.

Recent cases, such as one brought by Chicago police officers claiming overtime pay for off-the-clock Blackberry use, and another, in which Lady Gaga’s assistant sought overtime because the singer demanded constant availability, suggest that such claims may have viability. They also underscore the need for employers to adopt clear policies regarding working remotely. To address this problem some employers have created an e-mail curfew.

While an e-mail curfew and other policies to regulate the use of mobile devices may be difficult to enforce and could potentially upset clients, these proactive measures may be key to preventing employees from unexpectedly demanding compensation for accrued overtime hours. Such a policy might include:

  • Not issuing smartphones to non-exempt employees;
  • Directing supervisors to communicate with “off the clock” non-exempt employees only when absolutely necessary;
  • Reminding employees not to perform “off the clock” work without specific direction from supervisors;
  • Instructing non-exempt employees to not check or respond to work emails while “off the clock”;
  • Verifying the overtime-exempt status of all employees to avoid failing to pay a misclassified employee for assigned work; and
  • Requiring employees to track their remote working hours, or installing computer software to do the same.

Employers must adapt to technological advancements and maintain policies to address the modern workplace.  An e-mail curfew or similar risk management tool are available to employers to reduce the risk of FLSA repercussions.

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