Mark Tabakman was quoted in the HR Hero article, “Make Sure Smartphones Mean Smart Business: Beware of Wage-And-Hour Hazards.” Full text can be found in the January 12, 2015, issue, but a synopsis is below.
It’s extremely important for employers to make sure their employees’ smartphone use at home isn’t putting their organization at risk of violating wage and hour laws.
Mark Tabakman explains that there is an “explosion of class-action cases” stemming from overtime-eligible employees using smartphones to extend their workday without those after-hours tasks being compensated.
“Similarly Situated” Dangers
It only takes one person to start a whole mess for you. The U.S. Department of Labor investigators don’t stop with the complaining employee. They also look at how many others are “similarly situated,” Tabakman says.
Tabakman notes that the extension of work time made possible by smartphones and other electronic devices a new danger for employers. It calls for monitoring and a solid policy to hold down the threat of uncompensated overtime claims from employees who are not exempt from the federal Fair Labor Standards Act.
In the last several years, the courts have seen a flood of lawsuits in which groups of employees claim the time they spend reading and responding to e-mail should be considered work time and therefore paid. In many cases, they’re successful, Tabakman says.
“Think about implicit compulsion. A supervisor sends an employee—a subordinate employee—an e-mail Friday night asking for an opinion, asking for advice, asking for an answer,” Tabakman says. The supervisor sends an attachment and says “‘read this memo, give me your comments on it.’ … You’re a subordinate employee. Who among us is going to say to your boss, ‘I’ll get to it Monday’? Very few people. The world is so competitive. The workplace is so competitive.”
Tabakman points out that employees often are expected to check their e-mail, and it’s not too much of an overstatement to say many employees today are under “electronic siege.”
“De minimis” Defense Often Ineffective
When employees sue claiming they should be compensated for after-hours smartphone work, the employer typically uses the de minimis defense. De minimis means very little, a trifle, just a minute or two. The employer maintains that the time spent is de minimis, but it isn’t. Just five minutes a day adds up to almost a half hour a week.
“There are cases holding that a half hour a week is not de minimis,” Tabakman says. “The so-called de minimis defense, nine times out of 10, it’s a losing defense. Beware.”
Tabakman also reminds employers to think about state laws in addition to the FLSA. Employers should be aware that some employees are checking work e-mail at home whether they’re told to or not.
An employer doesn’t have to require employees to answer e-mail and perform other tasks off the clock to run into trouble. Merely permitting that work without counting it as compensable time puts the employer at risk. Employers may be “sitting on a time bomb,” if nonexempt employees are taking calls, checking messages, responding to e-mail, etc. without getting paid.