Tuesday, December 17, 2013

Sleeping with Siri: An FLSA Perspective

I sleep with Siri, and I’m not alone. According to a Pew Internet and American Life Project study, 44% of Americans sleep with their cell phone, many of which contain a work email account. Like that critical mass, I want to be connected and to be able to respond to a client if they email at 11:59 p.m. Because attorneys are “exempt” under wage and hour law, they don’t have to be paid extra above and beyond our salary for emailing in the wee hours. That’s not, however, the case with non-exempt employees. For employers that don’t have effective policies and policing of after-hours technology use by non-exempt employees, the wage and hour risks can be significant.

The federal wage and hour law (known as the FLSA) requires employers to pay all non-exempt employees at least minimum wage for all hours worked and one and an half times the employee’s regular rate for all overtime hours above 40 hours in a work week. This requirement applies regardless of whether the employer directed the work or the employer simply “suffered or permitted” the employee to work. So, that 11:59 pm email that took me 15 minutes to write would be compensable if done by a non-exempt employee even if a supervisor didn’t direct or know about it. 

On top of its pay requirements, the FLSA also requires employers to keep accurate records of all time worked by a non-exempt employee. This can get tricky when employees are, with the help of technology, able to work remotely at all hours of the day.  
Failing to pay minimum wage and overtime or to keep accurate time records could land an employer in hot water. The remedies available under the FLSA include back wages, an additional amount equal to back wages as liquidated damages, and a winning party’s attorneys’ fees and costs. An employee can sue under the FLSA individually or on behalf of a class of similarly affected employees, or the Wage and Hour Division of the U.S. Department of Labor can initiate an investigation. None of this is pleasant or cheap.

The following tips, however, can help to avoid these risks:
  1. Give non-exempt employees clear, written instructions on when they should and should not work. Include direction about when emails and/or calls should be checked, taken, or returned. Enforce your instructions.
  2. Instruct employees to record all working time accurately, including all the time they work at or outside the office. Provide forms for employees to complete and sign to verify the time worked.
  3. As a general rule, you should always pay employees for all the time that they work, regardless of whether the work was authorized. If an employee does not follow policies on working time, use coaching and discipline up to termination of employment, not pay withholding, to correct the issue.
  4. Consider “turning off” email, voicemail, or other technology access outside of normal business hours to prevent non-exempt employees’ ability to work at times that you don’t want them working. While this could lead to morale issues (i.e. “You don’t need me anymore?”), it can help to control working outside of normal business hours.
  5. Remain diligent on tracking hours, while avoiding pressure that leads to “off the books” work. While it is not necessary to watch the clock every second, creating proper expectations and procedures will go far in preventing liability under the FLSA.
The 24-7 workweek appears to be here to stay, so proactively working to set clear work time expectations now may prevent bigger problems later on. By 2020, market researchers anticipate that 85% of workplaces will have bring your own device (BYOD) programs in place allowing employees to access company files and emails at any time of day or night.  

Now, all this typing is making my thumbs hurt, time to go back to sleep.

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