Overtime for Cell Phone Use?

As if you didn’t have enough to worry about as an employer this year (health care reform, COBRA subsidies, the broad amendments to the Americans with Disabilities Act, and, oh yes, the economy), here is one more thing to keep you up nights.

Have you issued a cell phone to some of your employees? Do you expect those employees to take calls on it while they are away from work? What about smartphones that access email? Are your employees checking their work email account at all hours of the day? If so, you may have overtime problems.

Your exempt white-collar employees can answer the phone or check emails at any time and their salaries will cover that time. But if you expect or allow non-exempt employees, such as sales associates, service technicians, and administrative assistants to answer their phones or check their work email after hours, you have to pay them for that time “worked”.

Plaintiffs’ employment lawyers are salivating over the class action possibilities that off-the-clock smartphone use present. The Fair Labor Standards Act, which regulates overtime and minimum wage, allows employees when suing for overtime violations to collect double damages and attorneys fees. Multiply even occasional after-hours smartphone use by thousands of nonexempt employees and you can see the appeal to plaintiffs’ lawyers of these kinds of suits.

What can you as an employer do to avoid facing such a suit yourself?

  1. Have a very clear idea of which of your employees meet the FLSA exemptions and which ones don’t.
  2. Don’t issue phones to or expect after-hours attention from your non-exempt employees.
  3. Have an off-the-clock policy that explains that if nonexempt employees do consult their work email or take work-related calls after hours, that they must report that time to the timekeeping system so they can be paid for that time.
  4. Explain what types of calls and issues are emergency issues that can be handled after hours. Limit in writing the employees’ need to take any other type of call or email while not on the job.
  5. If you want your nonexempt employees to be reachable after work, then expect to pay overtime for that privilege and don’t make your employees reluctant to report that time worked.

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