In today’s digitally-driven age, it seems that it would be surprising to have an employee who did not have a smartphone, tablet, or other similar device that allowed him to instantly ‘connect’. In fact, many California employers assume that it is a given that their employees own a smartphone and encourage them to also use it for work-related purposes. Unfortunately, doing so can land a business in legal hot water.
A recent class action lawsuit filed in our Golden State acts as a strong reminder to employers that they can (and often do) face serious wage and hour claims regarding employee use of work-related devices. A work-related device can refer to a personal devices used during the employee’s course of business, as well company-issued device intended solely for work-related matters. Regardless of the origin of the device, wage and hour claim risks arise whenever employees are given and/or allowed to have work-related access off of the employer’s premises.
The facts of this class action lawsuit are as follows… The employees claim that while they were considered non-exempt employees in pay and in practice, they were placed “on call” without pay during non-working hours. How were they “on call” exactly? By responding to emails, according to the employees, who contend that they were expected to respond to emails on their cell phones after hours in order to address work-related concerns.
So the question arises – if a non-exempt employee has access to work emails on his smartphone and is expected to respond to these emails outside of his regular working hours, does that mean the employee is on-call and therefore entitled to on-call pay?
Generally speaking, employees should receive payment for all work performed, whether on or off the employer’s premises. But whether an employee is to be compensated for the “waiting time” – time spent waiting to receive work-related instructions but not actually working – is fact-specific. An experienced business lawyer can review the circumstances surrounding your employees’ ‘wait times’.
So how can employers ensure that employees do not check work-related messages after hours? To start, only those non-exempt employees with a clear need for access should be provided with off-the-clock connectivity. Further, employers should caution supervisors against contacting non-exempt employees outside of working hours. A simple, short text message or email could turn into a wage and hour battle down the road.
To discuss your company’s work vs. personal device policy, contact experienced business lawyer Drew E. Pomerance today.
