Compensation for checking smartphones after hours


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Jennifer Parent, Director and Chair of Employment Law Group, 603-628-1360

A growing area of concern regarding employee compensation is the use of smartphones or tablets by hourly or nonexempt employees after hours and on weekends. Employers provide these electronic devices to employees to allow them to stay connected with the office, co-workers, and clients. This may include answering and reading emails or texts or making and taking telephone calls.

With this increase in productivity for businesses has come some challenges for employers under the Fair Labor Standards Act (FLSA). Nonexempt employees must be paid for all hours worked – including any hours for work performed on a smartphone or tablet outside the office. 

Just as an employee who eats lunch at his/her desk and regularly answers the telephone and refers callers is working and entitled to compensation for that time, so too is an employee who does this after hours and on the weekend via a smartphone.

Employers have a legal obligation to track all hours worked so employees can be properly paid. Even if those hours were not approved by the company, employees working over 40 hours in a workweek are entitled to overtime pay.

Problems arise in our growing technological world when work time creeps into personal time and when employers fail to recognize and count certain hours worked as compensable hours.

To address this growing area of wage disputes, more companies are putting in place written policies covering the expectation of the use of smartphones or tablets after hours and beyond the workday by nonexempt (or hourly) employees.

Employers considering such policies should include a notice as to the company’s expectation of use of such devices during these off hours and a process for the employee to obtain required approval for work conducted during off hours as well as a process for tracking that time spent by employees on the device.

Other companies are choosing to limit such devices to exempt employees only.

With the boundaries of work and free time blurring, cases in this area are expected to increase. Employers should be prepared.

Jennifer is Chair of the firm’s Employment Practice Group.  Jennifer represents companies in litigation in business and employment disputes. She represents employers in the areas of employment discrimination, retaliation, harassment, wrongful termination, trade secret, non-competition, and non-solicitation. She has represented companies in a wide range of litigation involving business disputes.

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