Smartphones and After-Hours Work: FLSA Considerations

A growing number of employers provide smartphones and other mobile devices to help employees stay connected to coworkers, clients, and their work. While this may be a boon to productivity, it can also create challenges for compliance with the Fair Labor Standards Act (FLSA). Namely, if nonexempt employees are using smartphones for work while off the clock, it may lead to violations of the FLSA’s pay requirements.

The following are guidelines for helping to create clear policies and procedures for after-hours work:

1.    Develop a written policy. If you provide smartphones to employees, you should have a written policy covering your rules and expectations on the use of these and other mobile devices. Specifically, the policy should address whether the use of mobile devices after hours is expected, required, permitted, or prohibited. To help ensure employees are aware of your stance on the issue, require all employees to sign an acknowledgment that they have read and understand the policy. The policy (like all other policies) should be enforced on a consistent basis.

2.    Consider providing to exempt employees only. Whenever possible, employers should consider providing smartphones only to exempt employees. This can help to alleviate pay concerns related to after-hours work, since exempt employees are generally paid a set salary regardless of the amount of hours worked. In doing so, take the opportunity to make sure that your exempt employees are classified properly. To be classified as exempt, employees must generally satisfy three tests: a salary-level test (the amount they are paid), a salary-basis test (how they are paid), and a duties test (the work that is performed). Before providing smartphones to nonexempt employees, analyze whether there is a strong business reason for doing so.

3.    Limit use to established business hours. If smartphones or other mobile devices are provided to nonexempt employees, employers should consider expressly prohibiting use of the phones during off-duty hours. To help enforce the policy, controls should be in place to restrict or prevent remote access to company systems during nonworking hours. Consider working with your IT personnel to limit and monitor remote access. Employers should also provide employees guidance on how they should handle situations in which they receive a call or email from a client, coworker, or supervisor during off hours (e.g., only read or respond in emergency situations). Another option is to require nonexempt employees to turn off company cell phones when they leave work or require the devices be left at the office.

4.    Require prior approval. Consider requiring nonexempt employees to obtain written permission from their supervisor before using their mobile device for work during off hours. This can help to limit the occurrence of after-hours work.

5.    Consider limits on personal devices. In addition to placing restrictions on the use of company-issued cell phones, employers should consider developing rules around the use of personal phones and computers to respond to work-related calls or email. Let nonexempt employees know that the use of personal devices to perform work-related tasks must be recorded as hours worked.

6.    Require strict recordkeeping. Employers must maintain accurate records of hours worked for all nonexempt employees. To this end, employees must be aware that checking work email is considered hours worked and that they are responsible for reporting all time spent working. If the regular timekeeping system cannot be used to record after-hours work, employees should be instructed on how to promptly report such hours.

7.    Mandate timecard approval. Nonexempt employees should be required to review and approve their timecards at the end of each pay period and notify their supervisor if there are any mistakes. This provides the employee with another opportunity to report after-hours work and can help ensure the employee is paid for all time worked.

8.    Compensate for all hours worked. Nonexempt employees must be paid for all hours worked, regardless of whether the employee works without prior approval. Additionally, if their hours exceed 40 in a workweek they are entitled to overtime pay. Violations of the company policy on after-hours work should be addressed as a disciplinary matter without affecting the employee’s regular or overtime pay.

9.    Train supervisors and employees. Training should address the company’s rules and procedures related to after-hours work and remind employees that such time must be reported. Supervisors should be trained to set realistic deadlines that don’t require after-hours work and to spot and respond to situations in which employees are working off the clock (e.g., the supervisor receives a report via email from an employee at midnight and the employee hasn’t recorded the time on his/her timesheet).

10.  Conduct regular audits. Hours worked, recordkeeping, and employee classifications should be audited on a regular basis. This review may include interviews with supervisors and employees, an analysis of remote-access logs, and an examination of company cell phone records.

Mobile devices have resulted in productivity improvements for many businesses, but employers must be mindful of the FLSA’s requirements. Controls should be put in place to help limit after-hours work and if such work does occur, employers must ensure employees are properly compensated.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com