How to Avoid FLSA Claims for After-Hours Technology Use

Today’s technology enables workers to stay connected anytime they’re in reach of a wireless signal. That’s a mixed blessing: While it makes it easy to offer employees more flexibility in terms of where and when they do their jobs, it can complicate matters when it comes to managing workers’ hours, particularly for those who are eligible for overtime pay. What can employers do to keep nonexempt employees from putting in unauthorized, off-the-clock work time on their mobile devices that could expose the company to overtime claims? Here’s advice from employment law attorneys.

Setting Policies 

First, make sure you have a clear, comprehensive policy governing time reporting and employees’ use of electronic devices—whether those tools are personal or company-owned, says Peter Stuhldreher, an attorney with Reed Smith in Houston.

Many employers have bring-your-own-device policies that permit workers to connect their personal smartphones, laptops and other portable devices to their company e-mail and social media accounts. Carefully consider the wage and hour implications of adopting that practice, and set specific parameters around which employees may use these tools and for what purposes, says Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago. For example, don’t give nonexempt employees access to work e-mails through their smartphones unless there’s a business need, advises Susan Schaecher, an attorney with Fisher Phillips in Denver. You’ll also need to make it clear that off-the-clock work is not condoned and will have consequences, she recommends.

Then periodically monitor e-mail traffic to check for unauthorized use after regular business hours, and check in with employees often to explain the company’s policy, says Rebecca Bennett, an attorney with Ogletree Deakins in Cleveland. “Do not forget to remind supervisors of the policy, as employees typically respond after hours because of pressure or expectations from supervisors.”

If prohibiting off-schedule technology use isn’t realistic for your organization, you might check out one of a growing number of apps that can facilitate mobile time-keeping, allowing employees to enter time worked after hours, says Bill Nolan, an attorney with Barnes & Thornburg in Columbus, Ohio. Tools include All Hours, EasyClocking, TimeTrak, TimeClock Plus, Timesheet Mobile and NOVAtime.

Wage and Hour Laws

Under the federal Fair Labor Standards Act (FLSA), employers are required to pay workers 1.5 times their regular rate of pay for all hours worked beyond 40 in a week (unless they fall under one of the statute’s exemptions). But the FLSA is not the only legislation you need to consider. Some states have more-generous wage and hour laws that provide for higher minimum wages and daily overtime pay.

[SHRM members-only toolkit: How to Determine Overtime Eligibility in the United States]

Under the FLSA, there is a limited exception for “de minimis” time—trivial intervals that are difficult for employers to track—but that rule has been rejected under California law. Technology now makes it easier to capture short periods of work.

Reading and sending e-mails and responding to phone calls may be—and often are—legally compensable tasks for nonexempt workers and thus should be done during official company time, advises Linda Horras, an attorney with Hinshaw & Culbertson in Chicago. “Company policies should state this.”

Ensuring Compliance

Whether you should permit your workforce to use mobile devices for after-hours work depends on your industry, atmosphere and culture, Bennett says.

If you do allow it, you should have a thorough policy that addresses privacy, ownership, acceptable use and what happens when workers leave, she recommends.

Communicating your guidance is just as important as documenting it. Tell employees in no uncertain terms that they must report all of their time worked, whether it occurs onsite or after hours, Schaecher notes. Make sure people know exactly how to report their time, and monitor whether the devices are connected to the company’s systems after hours. 

Your policies should highlight a procedure for employees to regularly review their reported hours and provide guidance on how to notify HR or their supervisor if they believe they have worked unreported or unpaid time, Stuhldreher adds.

Finally, follow up with the appropriate warnings or discipline when people do send e-mail or perform other work outside of regular hours and you’ve asked them not to, Nolan says. 

“Most of us are addicted to our mobile devices, so employees will violate the policy, and the company needs to promptly address that when it happens.”