DOL Considering Rule on Portable Devices

By Allen Smith June 19, 2015

The upcoming rule on white-collar exemptions isn’t the only rule the U.S. Department of Labor (DOL) is considering.

The Wage and Hour Division announced in its spring regulatory agenda that it is developing a request for information for August 2015 on the use of technology, including portable electronic devices, by employees away from work and outside of scheduled work hours.

Though at the prerule stage, employers should be aware that the DOL is taking a look at this, Michael Schmidt, an attorney with Cozen O’Connor in New York City, told SHRM Online. “Employers should be concerned about how DOL defines record-keeping obligations,” he noted. Time sheets and punch cards historically have been used, but don’t work as well offsite.

Request for Information

The request for information may focus on:

  • What employers do to capture time spent working on mobile devices.
  • How much this is an issue.
  • How often employees are working on portable electronic devices.
  • Whether this warrants a rulemaking.

To the extent the DOL is going to regulate how often an employer can require work offsite, it could be a “further act of Big Brother encroaching on the running of the business,” Schmidt remarked.

Any proposed rule from the Wage and Hour Division on electronic devices is likely to focus on what type of work is compensable work time, according to Schmidt. The initial drafting of a proposed rule may be pro-employee, with record-keeping requirements that could be onerous or intrusive for employers, he cautioned.

The DOL is concerned about companies encroaching on employees’ personal time, sick leave and family time off.

Working during some types of leave isn’t reasonable, as the leave may be for physical or emotional reasons so that work can’t or shouldn’t be done. But for other types of leave, it may be reasonable to expect an employee to engage in some work, Schmidt added. Of course, when it comes to leave, the employer still must comply with the Family and Medical Leave Act and the Americans with Disabilities Act.

De Minimis Time

Another area of concern for employers is how the department defines de minimis time. When an employee is working, wherever he or she may be, the employee needs to be paid, unless the time working is de minimis, Schmidt noted.

If a worker “spends de minimis amounts of time answering a call, responding to texts or answering e-mail, it is not compensable.” But if the de minimis time is added up and there has been “a bunch of de minimis work, the periods no longer are de minimis,” he observed.

It’s not just a matter of making sure employees are paid for time spent working on portable electronic devices, but the overtime that could be triggered if they’re working away from the office.

Wage and Hour Policy

If it chooses, an employer can ban work away from the office. An employer may have the best policy at the HR level on not doing work remotely on portable devices, but it can be undermined by supervisors pressuring employees to get work done off the clock.

The bottom line for employers is ensuring supervisors aren’t saying in effect, “We know what the policy is, wink, wink,” and expecting employees to work extra time off the clock on their mobile devices. If employees aren’t supposed to work away from the facility, it’s “got to be a cultural thing and implemented down to the trenches,” Schmidt said.

And if there is a wage and hour policy prohibiting work away from the office, the way to handle a violation of the policy is through discipline, not by refusing to pay, he concluded.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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