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Phoning It In: Employee Use of Smartphones While Off Duty

By Robert J. Hingula

As discussed in our June 30, 2015 blog post, the Department of Labor (“DOL”) recently proposed changes to the salary requirements of the Fair Labor Standards Act’s (“FLSA”) white collar exemptions – putting many currently classified exempt employees in danger of losing their exempt status. While there are obvious issues related to revamping policies and record keeping practices for these affected employees, another issue lurks in the shadows – these once exempt employees regularly communicating and working outside of work hours via their smartphones.

More and more communication in the workplace is being done via emails and text messages on smartphones – particularly by exempt employees because their work  hours are not tracked and they are not eligible for overtime. With the DOL’s newly proposed rules, what is a company to do with employees who were once exempt and regularly used their smartphone for work and are now no longer exempt?

This question has not flown under the DOL’s radar. In its Spring 2015 regulatory agenda, the DOL’s Wage and Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.”  While the DOL did not propose any formal rule-making on the issue, it is likely the DOL will implement new rules relating to non-exempt employees’ use of smartphone and other electronic devices outside of normal work hours.

Non-exempt employees may sue employers for unpaid wages and overtime for time spent responding to electronic communication on smartphones outside of work hours.  The FLSA also allows “similarly situated” employees to litigate collectively to recover alleged unpaid overtime, unpaid wages, liquidated damages, and attorneys’ fees and costs.  The number of lawsuits on this particular issue is relatively small thus far but is growing.  Ironically, Verizon and T-Mobile have both been the subject of FLSA collective action suits where the plaintiffs alleged the companies required them to carry smartphones and monitor and respond to work-related emails and text messages at all hours.  These cases ultimately settled before the filing of any dispositive motions.

However, in Allen v. City of Chicago, No. 10-C-3183, 2013 WL146389 (N.D. Ill. January 14, 2013), a police officer sued the City of Chicago for unpaid overtime related to off-the-clock usage of his smartphone device.  The officer alleged that the police department issued police officers electronic devices and required them to respond to work-related emails, text messages, and voicemails around the clock while off duty.  The court conditionally certified a class of all police officers employed by the City that were required to carry smartphones, and in October 2014, denied the City’s motion to decertify the class.  The case is still pending.

Regardless of the increased prevalence of these cases, the advantages of smartphone use by employees and an employer’s ability to easily communicate with those employees outside work hours ensures that smartphones are here to stay.  If employers still wish for their employees to be connected via smartphone – even if the employee no longer meets the white collar exemption under the DOL’s new proposed rules – certain precautions should be taken:

1.  Employers must ensure that employees are properly classified as exempt or non-exempt based on their duties actually performed and salary.
2.  If at all possible, the issuance of smartphones or the ability of employees to use their own smartphone to access employer emails should only be granted to exempt employees.
3.  If smartphones must be used by non-exempt employees, those employees should be required to keep detailed time records of each phone-related activity, including the date, time, and description of the communication, and how long the employee spent reviewing and responding to the communication.   
4.  Employers must have and routinely educate employees on a policy against performing unauthorized work and off-the-clock work.  Similarly, employers must follow through with disciplinary action against employees who violate the policy, including, but not limited to, confiscating employer-owned phones, suspending the employee’s ability to access the employer’s email via their own smartphone, and termination.
5.  Employers should monitor employee’s access to and use of the employer’s network and email systems to ensure employees are following the employer’s policies.
6.  The employer can require supervisors to send emails with a “delayed delivery” so non-exempt employees do not receive emails until they are on-the-clock during normal work hours.

Because of the rampant use of smartphones and electronic devices in the business world, coupled with the DOL’s Spring 2015 Request for Information, it is likely that litigation on this topic will become more prevalent.  Employers are encouraged to preemptively address off-the-clock smartphone usage by those employees that soon may be reclassified as non-exempt under the DOL’s proposed changes to the white collar exemptions.