DOL Taking Interest in Smartphones and Off-the-Clock Work

May 28 2015 - Exempt/Nonexempt, Workplace Policies - Gail Cecchettini Whaley

In this era of smartphones and tablets, remote work creates off-the-clock liability issues. There is no longer a clear line in the sand signifying the end of a work day. Litigation has increased from nonexempt employees claiming that they were using their smartphones or other devices to do off-the-clock work after hours.

If nonexempt employees check their work emails after hours, you are going to need to pay them for that time – overtime pay if they have now exceeded 8 hours in a workday. It’s a common occurrence; for example, an exempt vice-president emails her secretary late at night. The nonexempt secretary happens to check his phone before going to bed, responds to the email, and takes care of a couple of action items. You now have an off-the-clock work issue.

The federal Department of Labor has also taken interest in this issue. In the spring 2015 regulatory agenda, the DOL requested the following information regarding hours worked under the Fair Labor Standards Act:

The Department is seeking information from stakeholders on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours…

This request for information may or may not lead to a proposed rule.

Regardless, California employers should implement policies and practices prohibiting off-the-clock work by nonexempt employees without prior approval. Some of these practices may include not issuing smartphones or tablets to nonexempt employees or blocking remote access to company servers after hours unless there is advance approval.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia members can read more about prohibiting off-the-clock work and best practices for remote work in the HR Library. Not a member? See how HRCalifornia can help you.

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