It appears that the U.S. Department of Labor intends to remain busy through the rest of the summer.  After releasing in June a Notice of Proposed Rulemaking seeking public comment on proposed changes to the Fair Labor Standards Act’s  “white collar” overtime exemption regulations, the DOL now has indicated that it will formally seek public input on the thorny issue of mobile device use by non-exempt employees outside their working hours.

The now seemingly ubiquitous use of mobile devices like smartphones and tablets has changed our culture and impacted our work in many ways.  Many employees, including both exempt and non-exempt employees, now have remote access to work-related e-mail, voice-mail, text messages, and telephone calls.  This 24/7 access creates the risk of unpaid overtime for employers if they have non-exempt employees performing work in the form of e-mail, telephone calls, and texting “off-the-clock” outside their normal working hours.  For FLSA purposes, employers are required to count such time for compensation purposes if they “knew or should have known” the non-exempt employees were engaged in such work-related activities, regardless of whether they actually asked the employees to perform such tasks.  Looking the other way can create real liability, and this issue may become the next wave of wage and hour class action lawsuits.

While courts and the DOL recognize that employers are not liable under the FLSA for “de minimis” uncompensated work time, there exists little guidance on what constitutes “de minimis” for these purposes.  Because the time spent to check and respond to e-mail on a mobile device can take as little as a few seconds, it may appear to be de minimis.  However, what if the employee is engaged in such activities five times an hour for hours on end?  The law is unclear on where the line is drawn between de minimis and compensable hours worked, and this lack of clarity is especially problematic when addressing the subject of mobile device use outside work hours by non-exempt employees.

(To make matters worse, Pennsylvania courts have not even recognized a de minimis exception under the Pennsylvania Minimum Wage Act.  Thus, liability for unpaid overtime may exist in Pennsylvania even if employees spend a very small amount of time accessing work-related materials outside of work hours.)

A DOL spokesperson confirmed that the DOL intends to issue a request for public information on this subject by the end of August, setting the stage for possible new regulations sometime in 2016.

In the meantime, the risk of liability is real for employers who have a sizable number of non-exempt employees with remote off-hours access to work-related e-mail, text messages, and telephone calls.  Such employers should consider the following:

  1. Determine whether and to what extent the operational benefits offered by giving off-hours access to work e-mail and telephone systems by non-exempt employees exceed the potential costs of class-based claims for unpaid overtime.  This practice is not risk-free, and employers should give such access to employees only where the benefits exceed the potential risks.  This analysis may result in reducing the number of non-exempt employees who have such access, which would help avoid the issue altogether.  Even if it is determined that certain non-exempt employees need remote access at certain times (such as when on-call), the employer may want to consider blocking remote access by these employees at all other times, to help reduce the potential risks.
  2. Have in place a policy for non-exempt employees that addresses working remotely and outside of normal work hours.  The policy should require employees to report all time spent working and provide a procedure to do so.  Also, to the best extent possible, the policy should confirm for employees when they may (and may not) access their devices or otherwise work remotely.  The employer then must enforce the policy.
  3. Continue to monitor legal developments in this area, which hopefully will provide greater clarity regarding what is and isn’t compensable time worked.