The year was 1938. The New York Yankees were playing the Chicago Cubs in the World Series. The Cubbies came up on the short end of a 4-0 sweep. The romantic-comedy film “You Can’t Take It With You” garnered Academy Awards for Best Picture and Best Director, Frank Capra.
And in Washington, D.C., President Franklin D. Roosevelt signed the Fair Labor Standards Act (“FLSA”) into law.
Fast-forward 75 years. The Cubs will still not win the World Series this year, but the FLSA remains relevant in today’s workplace. This is especially true with determining whether non-exempt employees are entitled to overtime pay for using smartphones (or any other electronic device) after regular working hours.
A federal judge in Chicago recently found that a FLSA lawsuit brought by police officers, claiming that they were required to answer emails on department-issued phones after the end of their shifts, could proceed forward as a collective action.
The FLSA requires employers to pay non-exempt employees at least one and a half times their regular rate of pay for all hours worked over 40 hours within any given workweek.
The statute defines the term “employ” to include the words “suffer or permit to work.” Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is considered hours worked.
Generally speaking, “hours worked” are all hours spent by the employee participating in tasks related to work that benefits the employer. This includes work-related telephone calls and emails that occur outside of their prescribed working hours.
In a Missouri federal lawsuit under the FLSA, the plaintiffs alleged that they regularly worked more than 40 hours a week in their jobs as admissions representatives and were required to check email away from work. As the court succinctly noted in its decision, “But there is no law against requiring your employees to check their email—the problem is allegedly not paying them overtime for this and other types of off-the-clock work.”
“You Can’t Take It With You” now moves from the silver screen to sound advice for employers to address the use of phones (or computers) after regular working hours. Here are some suggestions to address the reality of 24/7 electronic access.
If smartphones are issued to nonexempt employees for business reasons, employers should require employees to keep detailed time records of each phone-related activity, including the date, time and description of the communication. Consider a company policy for how smartphones are to be used, mandating that non-exempt workers are not to check email, or make or return phone calls, outside of normal business hours, unless they have advance authorization.
While requiring (and monitoring) employees is a critical aspect of FLSA compliance, employers must also take proactive measures to track any off-duty, remote work performed by their non-exempt employees. In today’s world, connectivity is a double-edged sword. It provides employees with flexibility to perform their work. At the same time, employers must remain in tune with obligations under the FLSA.
2013 is the new 1938.