Ever wonder if your nonexempt employees are sneaking a
peek at work email off the clock? Ever suspect their bosses of pressuring them
to respond to calls and emails after the workday ends? If those thoughts keep
you up at night, it’s time to make sure your employees’ smartphones aren’t
putting your organization at risk of violating wage and hour laws.
Mark E. Tabakman, a partner with Fox Rothschild LLP in
Roseland, New Jersey, warns employers of an “explosion of class-action cases”
stemming from overtime-eligible employees using smartphones to extend their
workday without those after-hours tasks being compensated.
“Similarly situated” dangers
“It only takes one person to start a whole mess for you,”
Tabakman says, since U.S. Department of Labor investigators don’t stop with the
complaining employee. They also look at how many others are “similarly
situated,” he says. A single employee’s complaint can turn in to a class action
when all the other similarly situated employees are included.
Just a few minutes a day over months or years can add up
to financial disaster if an employer has a number of employees regularly using
their phones for uncompensated work.
Tabakman recently conducted a Business & Legal
Resources webinar titled “New Wage-Hour Solutions for Managing Travel,
Training, On-Call Time and Smart Phones” in which he covered several wage and
hour issues, off-hours smartphone use among them.
Tabakman calls the extension of work time made possible
by smartphones and other electronic devices a new danger for employers that
calls for monitoring and a solid policy to hold down the threat of
uncompensated overtime claims from employees who are not exempt from the
federal Fair Labor Standards Act (FLSA).
“Implicit compulsion”
In the last several years, the courts have seen a flood
of lawsuits in which groups of employees claim the time they spend reading and
responding to e-mail should be considered work time and therefore paid. In many
cases, they’re successful, Tabakman says.
“Think about implicit compulsion. A supervisor sends an
employee—a subordinate employee—an e-mail Friday night asking for an opinion,
asking for advice, asking for an answer,” Tabakman says. The supervisor sends
an attachment and says “’read this memo, give me your comments on it.’ … You’re
a subordinate employee. Who among us is going to say to your boss, ‘I’ll get to
it Monday’? Very few people. The world is so competitive. The workplace is so
competitive.”
Tabakman points out that employees often are expected to
check their e-mail, and it’s not too much of an overstatement to say many
employees today are under “electronic siege” because they are required to
respond to after-hours messages.
“De minimis” defense often ineffective
It’s tempting to think that just a few minutes of
after-hours work won’t cause a problem because the time is minimal, but
Tabakman points out the danger of that thinking. When employees sue claiming
they should be compensated for after-hours smartphone work, the employer
typically uses the de minimis defense. De minimis means very little, a trifle,
just a minute or two. The employer maintains that the time spent is de minimis,
but it isn’t. Just five minutes a day adds up to almost a half hour a week.
“There are cases holding that a half hour a week is not
de minimis,” Tabakman says. “The so-called de minimis defense, nine times out
of 10, it’s a losing defense. Beware.”
Tabakman also warns employers to think about state laws
in addition to the FLSA. Also, employers should be aware that some employees
are checking work e-mail at home whether they’re told to or not.
Just because the employer doesn’t require employees to
stay tied to their phones doesn’t eliminate legal risk. The law defines work
time as the time an employee is “suffered or permitted” to work.
So an employer doesn’t have to require employees to
answer e-mail and perform other tasks off the clock to run into trouble. Merely
permitting that work without counting it as compensable time puts the employer
at risk. So employers may be “sitting on a time bomb,” Tabakman says, if
nonexempt employees are taking calls, checking messages, responding to e-mail,
etc. without getting paid.
Source: HR
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