When Employees Have to be Paid for Off-The-Clock Cell Phone Use
It is almost universal that mobile device habits bleed into work. More and more, answering a quick email, text or phone call outside of the workplace by nonexempt employees has blurred the lines of what is and what is not considered “compensable hours worked.” Many employers are reluctant to face this thorny issue of work performed on electronic devices outside of employees’ regularly scheduled shift hoping not to create a problem where one (seemingly) does not exist. However, a cottage industry has recently grown which focuses on suing employers on behalf of nonexempt employees in a class action for failure to compensate for more than isolated, infrequent, minor, offtheclock smart phone work.
When Can An Employer Be Found Liable?
When an employer has actual or constructive knowledge (that is, may not have known but SHOULD have) that the work is performed, overtime compensation must be paid (assuming the employee has already worked forty hours in that payroll week).
Basically, employers must pay for all, but trivial work that they know about, even if they did not ask for the work, even if they did not want the work done and even if they had a rule against doing the work!
Knowledge is pinned on the employer where, through reasonable diligence, is “should have known” that work was being performed. In the case of emails and texts received by the employer, it would be extremely difficult to deny knowledge of offtheclock work. The issue of liability for work being done away from the office is not only not going to go away, but will certainly proliferate as an increasing number of nonexempt employees conduct work remotely on cell phones. As all employers can expect to see an increase in the number of these type of claims, here are some helpful tips.
Helpful Tips to Avoid Liability
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If practical for your company, allow smart phone use only for exempt employees (who are not entitled to overtime) and restrict the availability of mobile devices for nonexempt employees).
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Establish time reporting policies by clearly promulgating a comprehensive, written policy regarding the use of smart phones including processes for employees to report any unpaid time.
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Have employees regularly review their daily and weekly hours worked to confirm that they’re reporting and, thus, compensated for all hours worked.
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Be sure that managers did not develop an “unwritten policy” discouraging employees from reporting their offtheclock time. The presence of a process for reporting unpaid time will not shield the employer from liability if employees are discouraged from supervisors and managers from doing so.
Conclusion
Technology has changed American workplaces and lawsuits revolving around smart phone use and other offtheclock computer work will no doubt continue to proliferate. The best way to avoid or minimize these claims is to be proactive and address this thorny issue before you find yourself defending a wage and hour lawsuit.
