Today’s mobile technologies take us beyond the traditional workplace. How often have you seen parents playing with their BlackBerries while watching their kids’ activities? The fact that we’re constantly “on” might well have implications for wage and hour exposures in the workplace. Start with the understanding that if someone is truly an exempt employee there’s nothing you have to worry about. The challenge comes with non-exempt employees who are entitled to overtime.
An employee’s use of BlackBerry devices and cell phones can potentially violate requirements about accurate time keeping and overtime. As a general rule, the Fair Labor Standards Act does not require an employer to account for “de minimis” levels of activity. According to a Second Circuit opinion:
“[W]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.
“Factors to consider in determining whether work done by an employee should be compensable include:
(1) the practical administrative difficulty of recording the additional time;
(2) the size of the claim in the aggregate, and;
(3) whether the claimants performed the work on a regular basis.“It should be noted that according to a federal regulation, 10 minutes is not de minimis.”
The next big challenge is to define “on call” time. Where an employee is unable to use their time effectively for their own purposes, they’ll be considered to be “engaged to work” and thus on the clock. However, if they’re not required to remain on the premises, but simply have to leave a way for them to be contacted, they’re not considered to be working while on call. Of course, if an employee needs to be available on short notice, contacting them by their BlackBerry or cell phone only when they’re needed prevents them from being “on call.”
Savvy employers need to understand these definitions. If an employee violates the overtime or on call policy, you still have to pay them for their time, but you can discipline them accordingly. The bottom line: If non-exempt employees are working beyond de minimis amounts of time away from the worksite or if they’re “on call,” be prepared to pay up.
