DEPARTMENT OF LABOR TO EXAMINE STANDARD FOR OFF THE CLOCK WORK ON PORTABLE ELECTRONIC DEVICES
It comes as no surprise to anyone that technology has forever obliterated the halcyon days in which employees were expected to limit their workdays to the time frame between 9 a.m. and 5 p.m. The 24/7 nature of the current workplace creates challenges, particularly when it comes to compensating non-exempt employees for their time on the job. As long as there have been work-issued portable electronic devices, employers have been confronted with the issue of what to do about the expectation that employees be accessible. United States Department of Labor regulations currently provide that “de minimus” work need not be compensated, defining such work as infrequent and trivial amounts of time that cannot practically be recorded for payroll purposes. However, employers who ignore arguably compensable time spent by their non-exempt employees on portable electronic devices outside of working hours, even if those devices are not company-issued, do so at their peril, as such practices create exposure to future wage complaints.
In recognition of the fact that courts have never devised a clear standard by which to judge when an employee should be compensated for answering e-mails and text messages when they are off the clock, the United States Department of Labor recently announced in its spring regulatory agenda that it is developing a request for information on the use of technology, including portable electronic devices, by employees away from work and outside of scheduled work hours. Federal labor regulators are expected to revise the current “de minimus” standard in order to provide clarity regarding what amount of time should be considered too insignificant to compensate such work outside of scheduled work hours.
This announcement coincides with the anticipated revisions to the Department of Labor’s regulations governing eligibility for overtime compensation, which currently include a significant increase in the minimum salary an employee must earn in order to attain exempt status. While it now appears that these revised standards will not become effective until late 2016 per recent comments made by Solicitor of Labor Patricia Smith, revision of the rule regarding employees’ use of portable technology for off the clock work is being contemplated in preparation for the expected spike in the number of non-exempt employees that will result from these restricted standards.
In order to avoid these pitfalls, it is recommended that employers implement clear policies regarding the expected scope of off the clock work. Some employers establish curfews for off the clock work, although such policies are challenging to enforce. If an employer does not wish for its non-exempt employees to be “on call” when not at work, it should limit issuance of portable electronic devices to key employees and its policy should clearly provide that such work must be approved in advance in order for an employee to be entitled to overtime compensation. Most importantly, such a policy must be enforced in order to be effective. Turning a blind eye to such practices, coupled with a failure to account for and to compensate overtime hours spent by non-exempt employees off the clock, may create unanticipated liability.
If you have questions regarding this anticipated legislation or other legal issues, please feel free to contact Governmental Affairs Director Connie Carrigan at .