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Phone: 606-618-0698

Time spent working via cellphone may be compensable overtime

Are your employees in the habit of checking in after hours via cellphone, instant messenger or email? Are they tracking their hours? They should be. Under the Fair Labor Standards Act, employees must be paid for all work they perform that the employer knows or should know about.

Surely a few after-hours emails don't add up to enough time to matter, right? Courts have found a "de minimis," exception to the FLSA, which allows very small amounts of time to be ignored when it's impractical to record it due to industrial realities. However, employers may not simply choose to ignore time worked because it occurred in small increments. If the time is more than what would be considered "de minimum," the time may be compensable.

If you assume that checking in after hours or on weekends is necessarily de minimis, however, you may be taking a gamble. According to a 2015 study by the executive education firm Center for Creative Leadership, people with smartphones are working more than you may expect. The study found smartphone users working, on average, about 13.5 hours per day -- and that includes weekends. 

Should employers try to track every after-hours email for all employees?

Each situation varies, but caution should be exercised.  An employer should first assess whether each employee is exempt or non-exempt from the overtime requirements of the FLSA. Your legal counsel can advise you on how to make the determination.

Very generally, most low- and middle-level workers will be non-exempt. That means they are entitled to overtime, even if they're paid on a salary basis. To be exempt from overtime, employees generally must exercise significant discretion and independent judgment.

Once you made that determination, you will need to track and verify all non-de minimis hours worked for non-exempt employees. This might be as simple as requiring non-exempt staff to enter after-hours work on their regular time sheet. When that time brings an employee above 40 hours in a single workweek, be sure to pay the premium overtime rate.

To avoid missteps, leadership needs to make clear that people aren't expected to work outside their scheduled hours without being compensated.  For example, stress that you don't expect an answer to your after-hours email to the non-exempt staff until the employee is back on shift, and if more than de minimus time is spend answering and responding to emails, that time should be recorded and paid.

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