In the last three or four years, there have been several cases filed against employers by nonexempt (hourly) employees who claimed they worked more hours than they were paid for because they checked their work email accounts at home in the evening or they remotely accessed their work files and sent a document to a client or answered a supervisor’s questions after hours. Technology has made this type of work easy and acceptable, but it also has made us as employers sloppy about our pay practices.
Applying the Fair Labor Standards Act, which regulates overtime and minimum wages, has never been easy, but when an employee showed up at the office, punched a time clock at the beginning of the work day and again at the end, paying that employee correctly was simpler. Nowadays, smartphones, flash drives, remote log-ins, texts, etc., have added a new layer of compliance issues to the FLSA. And attorneys who represent employees in wage and hour lawsuits are taking advantage of the complexity by bringing collective (class) actions against employers for failing to capture and compensate for the time employees spend using all of that technology outside of the office. These cases are very expensive because they court will always award the employee(s) two times their damages plus attorneys’ fees that often greatly exceed the damages.
Don’t stick your head in the sand on this issue and just hope you never get sued. At a minimum, you need a policy in writing addressing these issues. Tell your nonexempt employees that you never want them working “off the clock” and that you will pay them for any after hours work they perform. Let your employees know whether this kind of out of the office work is acceptable, or if not, be prepared to discipline your employees for performing it (but still pay them for it).