Technology = 24-Hour Remote Access = FLSA Violations?

In this digital age, chances are pretty high that your company allows telecommuting. Some employees are probably teleworking once or twice a week, while others live far from the company and work from home on a full-time basis.

Research has shown that allowing work to be done away from a centralized office can save employers money, boost productivity, and allow employees to have more satisfying personal lives. Not only that, but technological advances keep making it easier for employees to "remote in" and for managers to keep tabs on them. You can go old school with phone calls and email, or use applications like Skype, Slack, Yammer, SendHub, Fuze… the options continue to evolve.

As these advances allow new flexibility with respect to where and how work gets done, the ability to connect 24/7 also blurs the line between on-duty and off-duty hours. Even those employees who aren’t telecommuting have a tendency to check things from home, take care of some emails, get a head start on the next workday.

But here’s the question that arises: If employees log additional work time outside of their regular hours—whether it’s from home, on the subway train during their commute, from the bleachers at a soccer game, or wherever—is the employer on the hook to track and pay them for that time?

Unless the employees qualify for an exemption under the Fair Labor Standards Act and similar state laws, the answer is probably "yes." And given the recent rise in wage-hour litigation, that "yes" can translate to costly legal liability for employers.

Risks of Contact After Hours

Under the FLSA, employers must pay covered employees overtime compensation at a rate of at least one and one-half times their regular rate of pay for each hour or fraction of an hour worked in excess of 40 during a given workweek.

The FLSA doesn’t just cover an individual’s scheduled hours. The law also holds employers responsible for any time that employees are "suffered or permitted to work." You have to count everything, including time outside the normal workday or shift. Even if the employer has not requested or has prohibited overtime, the time worked is compensable. Employees cannot voluntarily waive the right to receive overtime pay, so the reason they worked overtime is not a relevant issue.

If managers are emailing employees while off duty and employees respond to those emails, that can constitute time spent working. Likewise, supervisors who text workers after hours should understand that workers need to be paid for the time they spend on these "quick" tasks. Yes, it only takes a minute or so to respond to a text, but those minutes can add up if workers respond to multiple texts while they’re out of the office.

Violating the FLSA can result in costly litigation, with employers found liable for unpaid overtime compensation, plus liquidated damages of an equal amount. In addition, lawsuits over unpaid wages can include an award of attorney's fees and legal costs, and the FLSA also provides for criminal sanctions.

If potential liability under the FLSA isn’t enough of a deterrent to refrain from pinging workers past the end of the workday, consider the potential negative impact of staying constantly connected to work. Without downtime, employees can suffer burnout as a result of losing work-life balance. And isn’t that balance at least part of the reason employers are allowing remote work in the first place?

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