We are currently living in the age of the smartphone. Everywhere you turn, people are looking at apps, surfing the Web on their phone or checking their email. Those in the business world are among the heaviest users of smartphones and personal digital assistants (PDAs)—the allure of being constantly tied to email is too strong to pass up. The rise of the PDA has changed the dynamics of the typical work day. Gone are the days of putting in a strict 9 to 5. With constant access to the office, workers are now able to check and send business-related emails during non-office hours. This could lead to trouble for companies that have work-issued smartphones.
According to a press release from law firm Keeley, Kuenn & Reid, there has recently been a rash of lawsuits brought under the Federal Labor Standards Act (FLSA) against companies by employees who expected overtime pay for emails sent on their PDAs during non-work hours. The FLSA specifically states that unless an employee is “exempt,” the worker must be paid overtime (at least one-and-a-half times the regular hourly rate) for time worked in excess of 40 hours in a week. Exempt employees tend to be salaried workers who qualify under Labor Department regulations as executive, administrative, professional, computer or outside sales personnel. (See Department of Labor regulations, 29 CFR Part 541 for a full explanation.)
The lawsuits allege that the nonexempt employees were expected, or at the very least allowed, to respond to business-related emails and calls outside of normal business hours. By nature of being nonexempt, the suits allege that these employees are entitled to overtime pay for all time spent responding to emails and calls during these off-hours.
Material Handling At Risk?
Many material handling companies issue smartphones to their employees and may be at risk for litigation. One manufacturer says, “Unfortunately, this issue is indicative of the current state of ridiculous regulations and the litigious society we live in today. Give a trial lawyer a fresh idea with a payer at the other end and you get class-action lawsuits.”
Others disagree with that notion, however. “While I am not a lawyer, to me there is no question. If the use of a device is required as part of the hourly worker’s job, then time spent on that device is not exempt from overtime,” says a lift truck distributor. “It has been an issue for some companies who did not want to correctly pay their employees for work done at the convenience of the company. I guess one person’s ‘ridiculous regulation’ can be another person’s fair pay for time worked.”
Protect Your Company
Whatever side you come out on, there are ways that companies can limit their exposure to lawsuits. The employer can issue a PDA only to exempt workers. It can also have a policy that nonexempt employees are not expected or permitted to respond to business-related emails from any device during non-business hours. If use during non-business hours absolutely can’t be avoided, the employer should have strict guidelines that regulate use. One guideline would be that the employee can only use the device in situations where they are given express authorization.
No matter the PDA policy, it may be in the employer’s best interest to require nonexempt employees to track and record all time spent using any PDA or device for work purposes during off-hours. By having hard and fast records of usage, the employer can control overtime and limit exposure to lawsuits. Employers should consult a lawyer to determine the best way to handle this issue.