The Modern Workplace

I sleep with Siri, and I'm not alone. According to a Pew Internet and American Life Project study, 44% of Americans sleep with their cell phone, many of which contain a work email account. Like that critical mass, I want to be connected and to be able to respond to a client if they email at 11:59 p.m. Because attorneys are exempt under wage and hour law, they don't have to be paid extra above and beyond our salary for emailing in the wee hours. That's not, however, the case with non-exempt employees. For employers that don't have effective policies and policing of after-hours technology use by non-exempt employees, the wage and hour risks can be significant.

Failing to pay minimum wage and overtime or to keep accurate time records could land an employer in hot water. The remedies available under the FLSA include back wages, an additional amount equal to back wages as liquidated damages, and a winning party's attorneys fees and costs. An employee can sue under the FLSA individually or on behalf of a class of similarly affected employees, or the Wage and Hour Division of the U.S. Department of Labor can initiate an investigation. None of this is pleasant or cheap.

1. Give non-exempt employees clear, written instructions on when they should and should not work. Include direction about when emails and/or calls should be checked, taken, or returned. Enforce your instructions.
2. Instruct employees to record all working time accurately, including all the time they work at or outside the office. Provide forms for employees to complete and sign to verify the time worked.
3. As a general rule, you should always pay employees for all the time that they work, regardless of whether the work was authorized. If an employee does not follow policies on working time, use coaching and discipline up to termination of employment, not pay withholding, to correct the issue.
4. Consider turning off email, voicemail, or other technology access outside of normal business hours to prevent non-exempt employees ability to work at times that you dont want them working. While this could lead to morale issues (i.e. You dont need me anymore?), it can help to control working outside of normal business hours.
5. Remain diligent on tracking hours, while avoiding pressure that leads to off the books work. While it is not necessary to watch the clock every second, creating proper expectations and procedures will go far in preventing liability under the FLSA.