By Glenn A. Duhl, Esq.
Under both state and federal wage and hour laws, employers are required to pay nonexempt hourly employees for all hours/time worked–whether “scheduled” or not. It follows that when an employer knows that a nonexempt employee is working–even if it is off-schedule–the employer must compensate that employee for that time.
Keeping track of an employee’s “work time” used to be straightforward. An employee would “punch in” when she or he started a shift at the worksite and “punch out” upon completion of the shift and before taking any breaks and/or leaving the worksite–providing a clear record of hours worked.
With the ever-increasing use of technology in the workplace, however, the once-clear correlation between an employee’s “work time” and the physical worksite is blurring. Increasingly, employees are working on portable electronic devices (i.e., mobile or smartphone devices) away from the worksite and outside of scheduled hours. Traditional record-keeping methods, such as punch cards and time sheets, do not lend themselves to capturing time spent working on portable electronic devices offsite. Even so, it falls on the employer to ensure that nonexempt hourly employees are properly paid for all work performed after hours and off premises, and account for whether said offsite work triggers the employer’s obligation to pay overtime.
Given these realities, it behooves an employer to head off these issues by implementing a written policy addressing after hours and offsite work, and more specifically, restricting the use of portable electronic devices by nonexempt hourly employees. In addition to a general prohibition of after hours and offsite work, any such policy should also describe the circumstances under which a nonexempt hourly employee is authorized to use a portable electronic device to perform such work, including whether and from whom (i.e., supervisor) permission must be obtained, as well as instructions for recording and submitting any such work performed. Violation(s) of this policy must be addressed through the employer’s normal channels of discipline, even up to and including termination. Refusing to compensate the employee for working after hours and offsite without the requisite authorization, however, is not appropriate.
Glenn Duhl is a management-side employment and litigation lawyer at Siegel, O’Connor. Please visit www.siegeloconnor.com.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.
(image courtesy of ecodaily.org)