THE WAGE AND HOUR PERILS OF OFF-HOURS SMARTPHONE USE

“Implicit compulsion”

In the last several years, the courts have seen a flood of lawsuits in which groups of employees claim the time they spend reading and responding to e-mail should be considered work time and therefore paid.  In many cases, they’re successful.

Employees are often are expected to check their e-mail, and it’s not too much of an overstatement to say many employees today are under “electronic siege” because they are required to respond to after-hours messages.

“De minimis” defense often ineffective

It’s tempting to think that just a few minutes of after-hours work won’t cause a problem because the time is minimal, but this defense, called the “de minimus” defense, is often unsuccessful.  Even five minutes a day adds up to almost a half hour a week, and there are court cases that hold that a half-hour per week is not “de minimus”.

In addition, employers should be aware that some employees are checking work e-mail at home whether they’re told to or not.  Just because the employer doesn’t require employees to stay tied to their phones doesn’t eliminate legal risk. The law defines work time as the time an employee is “suffered or permitted” to work.  As a result, an employer doesn’t have to overtly require employees to answer e-mail and perform other tasks off the clock to run into trouble.  Merely permitting that work without counting it as compensable time puts the employer at risk. As a result, employers must be extremely careful about nonexempt employees taking calls, checking messages, responding to e-mail, etc. without getting paid.

Thus, it is important that employers have policies setting forth the proper use of smartphones for work-related matters after-hours.

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