MOBILE DEVICES AND OVERTIME

Under the federal Fair Labor Standards Act (FLSA), nonexempt employees must be paid overtime compensation for work they perform for their employer’s benefit in excess of forty (40) hours in any workweek. Work performed remotely, such as responding to e-mails on a smartphone or drafting a report on a laptop at home, could push an employee’s work hours in a given week beyond the 40-hour threshold.

FLSA violations can occur unexpectedly because an employee need not have been asked to work beyond the 40-hour workweek to be entitled to overtime pay. Two recent cases illustrate the risk of allowing employees to work outside the office using mobile devices.

In Allen v. City of Chicago, a police officer sued the Chicago Police Department under the FLSA for requiring him to work “off the clock” using a department-issued BlackBerry device without receiving overtime pay. A Chicago federal district judge conditionally certified a collective action to allow 200 similarly situated police officers to join the lawsuit.

In O’Neill v. Mermaid Touring Inc., Jennifer O’Neill, the former personal assistant of pop artist Lady Gaga, sued for overtime compensation under the FLSA, alleging she worked 24/7 because she was expected to always have her phone on so she could respond to Gaga’s calls at any time of the day.   A New York federal district judge denied the star’s argument that O’Neill’s on-call time wasn’t compensable, and the case was settled in late October, 2013, avoiding a trial which was set to commence two weeks later.

Bottom line

These cases highlight the need to institute clear policies spelling out the authorization employees must obtain before working remotely using their mobile devices. Organizations that allow employees to use mobile devices for work purposes should require them to keep track of the time they work remotely or consider installing software on employees’ personal devices that automatically performs a timekeeping function. Taking proactive measures to manage mobile device usage for work is crucial for preventing employees from secretly racking up overtime hours and then demanding compensation.

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