Smart phones, tablets and wi-fi are blurring the lines between work and non-work time, especially for non-exempt employees.  The question facing employers is whether or not to pay employees for time outside of the normal work day for periods spent on their smart phones, especially if it triggers overtime.

There is currently no national standard.  While some federal courts have weighed in, the U.S. Supreme Court has not.

The issue has caught the attention of the U.S. Department of Labor (DOL), which has announced plans to collect information on how the use of smartphones impacts hours worked under the Fair Labor Standards Act (FLSA). The DOL announced that it will seek input by publishing a request for information in August.

DOL states that there is no formal rulemaking proposed at this stage, but the gathering of information such as this is often the first step toward drafting a rule.

Technology has changed how, where and when work is done.

The FLSA generally mandates that employers pay non-exempt workers for all hours worked, and overtime for all hours worked in excess of 40 hours in a work week. Time spent working outside the office on mobile devices and computers by non-exempt employees complicates working-time determinations made by employers and could ultimately affect overtime determinations.

While some employers already have policies in place regarding off-hours use of electronic devices by overtime-eligible employees, DOL’s decision to open up this door suggests that any one particular policy may be subject to additional scrutiny in the future.

Now is the time to think about your current policy (if you have one) and your current practices regarding electronic devices:

• Adopt controls to prevent non-exempt employees from accessing your IT network remotely when they are not working; or monitor the activity of those employees who do access the network.
• Adopt a clear policy about unauthorized work and overtime. Be prepared to enforce it through your disciplinary policy
• Remind employees of the relevant policies by updating and reissuing them. Require employees acknowledge receipt of the policies. You might also consider providing employees with training on the topic.
• Educate managers about the issue of non-exempt employees working remotely. Be sure the managers know your company policy with regard to including information on timesheets. They should also be alert to things such as employees responding to work sourced email(s) over the weekend or turning in assignments first thing Monday morning.

If this issue is already a problem, now is the time to address them:

• Limit or deny the email or remote access privileges of non-exempt employees who violate policies.
• Suspend telecommuting privileges for those not in compliance with your policy.
• Revoke any employer-owned devices if they are being used to perform unauthorized work.

If you are concerned enough about this to comment to the DOL during its fact-finding phase, remember that the opportunity is likely to happen this August.

If you have any questions about this or any other HR related matter, please contact the AIM Hotline at 1-800-470-6277.