Technology’s made it easier for employees to get more work
done, anytime and anywhere. That sounds great to managers — but
it can spell big trouble for HR.
When
bosses encourage or require nonexempt employees to work off the
clock, that’s a recipe for wage and hour
violations. Even simple tasks like checking e-mail count as
work and can lead to costly court battles.
Take this recent lawsuit:
Last month, three nonexempt sales associates
filed a suit against T-Mobile USA for back wages and unpaid overtime.
They claim they’re
owed pay for time spent responding to e-mails after work hours.
The employees were given company-issued smartphones.
They regularly received e-mails and text messages from customers
and supervisors — and
were required to respond them, whether or not they were on the
clock.
When they reported those hours on their time
sheets, management told them they wouldn’t be paid for the
time and that they should expect to respond to messages as part
of the company’s “standard
business practices.”
Do the employees have a case?
The biggest strike against T-Mobile is that the employees were
allegedly required to respond to messages in a timely manner.
However, the Fair Labor Standards Act (FLSA) says all work and
overtime by nonexempts needs to be paid for even when it’s voluntary — and
even when extra is against company policy.
The law does say “de minimis” work (defined as work taking
only “a few seconds or minutes”) can be unpaid. That
means, for example, that an employee could quickly read and respond
to some e-mail without any trouble.
But the definition of “de minimis” is murky — some
courts have ruled that work taking as little as ten minutes needs
to be paid.
What HR can do?
Here’s how HR can help avoid a lawsuit like T-Mobile’s:
- Don’t give devices to nonexempts – Nothing can
stop employees from performing work on their own phones and computers,
but giving BlackBerrys to nonexempt employees sends the message
that they’re expected to work off the clock.
- Train
managers – Supervisors should avoid e-mailing nonexempts
after hours. Again, it sends the message that they’re
required to respond.
- Create
and enforce policies – Employees need to be
paid for any work they do, but you can discipline people who
work when they aren’t supposed to
Posted in HR Morning August 17,
2009 by Sam Narisi
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contact Fern
Powers, 215-563-5520 for help in Exempt/Non-Exempt
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