Legal Blog

Should You be Paying Your Non-Exempt Employees for Time Spent Text Messaging?

textingIn an increasingly mobile and technologically-advanced world, one often hears the lament of the decline of “personal time.” In this day and age, the line between work and home is often blurred to the point of non-existence. The office worker eating dinner at home with her family may find herself dropping her fork in between bites to respond to a quick e-mail. The employee enjoying a movie with a friend may duck out of the theatre for several minutes to field a call from his supervisor. These mundane happenings are, for better or worse, ubiquitous. For the most part, our increasing connectivity is, at the risk of sounding cliché, good for business: Employers benefit greatly from better access to their employees; customers benefit greatly from increased turnaround time and more timely service. According to the government, however, employees may be losing out on earned compensation. Often ignored in the hubbub over the Department of Labor’s (the “DOL”) recent announcement concerning substantial changes to the seemingly moribund wage and hour laws (which I had occasion to write about previously) is an agenda item which has the potential to significantly modify the landscape for employers who expect their workers to be accessible using mobile technology. Enumerated RIN 1235-AA12, the DOL explained that it “is seeking information from stakeholders on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.” Although there have not been any finalized rules (or any drafts, for that matter), the agenda item is certainly evidence that this issue is on regulators’ radar. As it stands, non-exempt employees who spend long hours on their mobile devices performing work functions must be paid for such time. In contrast, spending five (5) seconds to respond to a text message advising a supervisor that you left the Jones file in the bottom drawer of your desk is likely not compensatory time under the “de minimis” rule. Working for a duration between these two polarities, however, presents significant difficulties for employers, who are often left to perform a complex cost-benefit analysis while trying to stay on the right side of the law. Such a scenario is exacerbated by the fact that, to date, non-compensable de minimis time is not defined. In this vein, the DOL’s forthcoming rules may very well be helpful as a means of guiding employers in setting mobile policies for their non-exempt employees. Given the trend toward increased compensation for non-exempt workers, however, the rules may render compensable that which employers have consistently deemed otherwise. This turn of events may have significant consequences when and if this increased time requires the payment of an overtime premium. For your business, the extant uncertainty requires that you stay ahead of the curve: for those businesses which as a matter of practice require their non-exempt employees to be available via mobile devices, it is vital to have in place a comprehensive mobile policy and to appropriately manage employee expectations as to out-of-office work. It is also important to develop tools and strategies for ensuring that truly compensable time is correctly tracked and guaranteeing that overtime work is monitored and compensated. If you want your business to stay ahead of the curve, or if you are interested in learning more, please feel free to contact me directly.



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