As we have discussed in previous posts, smartphones are making life a bit more challenging for business owners, especially in terms of overtime pay. It’s a modern reality that today’s workplace is anywhere within range of a wireless signal. With many employees habitually checking their smartphones at all hours for emails, text messages, voicemails, tweets, and other electronic transmissions, more and more employers are finding themselves with a potential wage and hour class action on their hands.
The FSLA
It should come as no surprise that the number of Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) lawsuits filed relating to electronic overtime pay is on the rise, and there are several pending cases involving employer liability for electronic overtime. The FSLA requires employers to pay non-exempt or hourly employees at 1.5 times the regular rate of hourly pay for all hours worked beyond a specified number (usually 40 hours in a 7 day workweek). This includes any overtime spent on mobile devices — Time spent texting, calling, emailing, and social media-ing (i.e. responding to company Facebook messages or tweets) for work-related purposes. Employers should be wary of overtime lawsuits, as employees who prevail can recover lost wages (plus interest), liquidated damages, plus attorneys’ fees and costs. (29 U.S.C. section 216(b)).
But I Didn’t Know!
Unfortunately, ignorance is not bliss when it comes to an employee’s use of a mobile phone for work-related purposes after hours. Indeed, employers are liable for the failure to make these required overtime payments whether the employers have actual or constructive knowledge of the employees’ overtime. And having a well-written employment policy in place is also not enough if the employer does not follow through on either a) not accepting the employee’s after hour work or b) compensating the employee for the overtime work performed. Indeed, if an employer receives and accepts an assignment from an employee submitted by email after hours, he is deemed to have constructive knowledge of the overtime hours worked and therefore is liable to pay that employee for his/her work performed.
For more information on how to approach running a business in the technological age while avoiding class actions and other legal liabilities, contact experienced employment attorney Drew E. Pomerance today.
