With the coronavirus pandemic forcing so many of our employees to work remotely, and with mobile technology allowing them to work from anywhere, your employees may be working when they are off the clock.
They may feel pressured to do so or maybe they just want to get their work done, but if they are working past normal working hours, it could spell trouble for your organization.
The proliferation of smartphones had already led to a rising number of lawsuits by employees claiming they were required to work uncompensated on evenings and weekends when not on the clock. Now, labor lawyers are expecting a second surge in these lawsuits as more people work from home during the pandemic.
The class action danger
Often it may just be as simple as an employee receiving a text message from the boss asking for something, they take a few minutes and send them what they need.
The problem for employers is that when one employee complains to the Labor Department that they are not being compensated for time working when away from work, the agency's investigators won't stop with the complaining employee. They also look at how many others are "similarly situated."
A single employee's complaint can turn in to a class action when all the other similarly situated employees are included.
Just a few minutes a day over months or years can add up if employees regularly use their phones for uncompensated work.
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.
The danger is that when a boss sends a worker a message off-hours and asks them to read something or send an e-mail, the employee will usually feel compelled to do as they're told, even if they don't want to.
When employees sue claiming they should be compensated for after-hours remote work, the employer typically uses the de minimis defense, but that's a dead end. Here's why:
De minimis means very little, perhaps just a minute or two. The employer maintains that the time spent is de minimis, but it isn't. Just five minutes a day adds up to almost a half hour a week. There are precedent-setting court decisions that have said that even 30 minutes extra a week is not de minimis.
Also, besides federal law, you have state laws to contend with.
Additionally, you may not even know 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.
So, an employer doesn't have to 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.
What should you do?
The extension of work time made possible by technology and the pandemic's push towards more telecommuting, poses a new danger for employers.
To ensure you don't find yourself the target of a wage and hour lawsuit, you need to put in place a solid policy about non-exempt employees working from home.
You should put the policy in place, communicate it to your staff in a tele-conference, as well as include the policy in your employee handbook.
Once the policy has been communicated, you have to monitor and survey staff to make sure they are not breaching the rules.
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