Smart Phones and Overtime

A survey of employed email users finds:

  • 22% are expected to respond to work email when they’re not at work.
  • 50% check work email on the weekends.
  • 46% check work email on sick days.
  • 34% check work email while on vacation.

Source: Mother Jones

In several cases, non-exempt employees have sued their employers for unpaid overtime compensation because the employer required them to check communications on their smart phone when not on duty. The cases revolve around the question of whether the act of checking communications constitutes compensable work.

The Fair Labor Standards Act (FLSA) governs minimum wage and overtime. It entitles employees to whom the law applies to receive overtime compensation for “time spent working” beyond the 40-hour workweek. Both the minimum wage and overtime provisions of FLSA generally do not apply to workers in executive, administrative or professional positions and outside sales employees who are paid on a salary basis. Requiring these exempt employees to check their smartphones would not subject employers to overtime claims.

As phone records are easily accessible, employees who use them off hours can provide solid evidence for their overtime claims. To avoid claims for unpaid overtime, employers can limit use of cell phones to exempt employees only, or limit their use by non-exempt employees during work hours only.

Both iPhone and Android smartphone users can download apps that let them track their work hours easily, right on their phones. Most allow users to make notes about their work hours, assign work time to specific projects, view a summary of hours worked and email reports. Some are available at no cost.

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