Wireless Devices Tied To Illegal Pay Practices 

(Published August 10, 2009)

 

Last month, T-Mobile USA was hit with a class action lawsuit, which alleges that the company did not properly pay employees and supervisors for all of their time worked. The case reminds employers of the legal pay issues that can arise when employees are electronically tied to the office.

 

The lawsuit alleges that retail sales associates and supervisors were required to read and respond to text and e-mail messages "all hours of the day," regardless of whether they were logged into the company's computer-based time-keeping system. They were also allegedly required to take and place work-related phone calls and participate in conference calls during their unpaid lunch breaks.

 

The federal Fair Labor Standards Act (FLSA) requires that non-exempt employees be paid for all hours worked, including overtime, as applicable. Even if you do not require or encourage employees to work through lunch or check their e-mail late at night (and even if you discourage it), if employees do the work, you must pay them for the time. It can add up to a pretty penny in overtime costs if they work more than 40 hours a week (in some states, overtime is daily and kicks in after eight hours).

 

Exempt employees who are on an electronic leash are a little less troublesome because they get paid the same salary no matter how many or few hours they work in a week. But they are not completely issue-free. Because exempts must be paid their full salaries in any week in which they perform work, can they claim that a one-week unpaid leave of absence suddenly must be paid because they chose to check their BlackBerry all week? This legal theory has not yet been tested in court; you certainly don't want to be the test case.

 

Employers have every reason to control the use of wireless devices and other electronic communications that result in employees working off the clock.

 

Smartphones, Smart Practices

In order to stop employees from working off the clock, you need to find out why they are doing it. Is it management pressure? Are they too overwhelmed by their workload to get their work done during regular hours? Are they not working efficiently during their regular hours? Are performance incentives such that employees are willing to work off hours in order to acquire them?

• Absolutely prohibit managers from requiring employees to work off the clock. This includes the less overt behavior of suggesting that employees work off the clock or implying that they should work off the clock. A "do whatever it takes to get the job done" attitude is great, up to the point that it results in illegal or unethical behaviors.
  
  
• Educate employees on the applicable laws and company policies regarding hours worked, time reporting, and the like.
  
  
• Require employees to get management authorization before working off hours or putting in overtime. They may be disciplined for failing to follow directives, but they must still be properly paid for all time worked.
  
  
• When employees go on vacation or take a leave of absence, restrict remote access to the company's e-mail system and require them to leave their company-provided cell phones with their manager. Short of that, their managers and co-workers should not be contacting them about work-related matters except in emergency situations.
  
  
• Audit records to ensure that time-keeping and pay practices are on the up and up. Randomly audit employees' phone records to see whether they are making/taking work-related phone calls or sending/receiving work-related texts/e-mails outside of regular work hours and whether they are reporting this time and getting paid for it.

Related Topic(s): Payroll Management/Overtime, Payroll Management/FLSA - Fair Labor Standards Act