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The Risks of "Staying Connected" with Your Non-Exempt Employees After Work

The great blessing (and curse) of modern technology is that it allows us to leave the office at a reasonable hour and work from the comfort of our homes. Today, thanks to mobile devices, I am able fine tune my cross-examination for next week’s trial on my laptop or research some other state’s non-compete law on my tablet while sitting on my porch. I can also provide some last minute advice — via smartphone — to my client, who is worried about an OSHA inspector who will be visiting his facility in the morning. I suspect that most of my blog readers are, like me, either business owners or otherwise exempt employees. Therefore, except for perhaps certain tax authorities, no one cares where we do our work. That is not the case for non-exempt employees.

The United States Department of Labor has recently shown an increased interest in non-exempt employees’ use of electronic devices to perform work outside the workplace, and one can expect that more plaintiffs’ lawyers will explore this issue with potential clients. Employers may think they don’t need to worry about the rare two-minute phone call, email, or text message from a supervisor to an administrative assistant with an urgent question, but the law might require the assistant be paid for this time.

Because of the requirements of the Fair Labor Standards Act, employers should think long and hard before providing non-exempt employees with any devices or laptops that will allow those employees to remain connected after hours. If an employer believes that it is essential for a particular non-exempt employee to remain connected because someone may need to contact them after hours (e.g., a computer help desk worker or the company’s internal travel clerk), the employer should communicate its expectations — preferably in writing — about when the employee should perform work and the company’s absolute requirement that any time worked should be recorded. Additionally, employers should make sure that its managers understand the employer’s legal obligations to pay their non-exempt subordinates for work performed outside of normal working hours and that they should never allow their subordinates to work off-the-clock. Be especially aware of those “special” relationships between managers and “loyal” personal assistants who have always been willing to work off-the-clock — most employment lawyers could give you more than one example of a great relationship that sours and leads to wage and hour litigation. And if supervisors are dismissive of the company’s concerns, you may want to remind them that a supervisor who doesn’t take this concern seriously could be held individually liable for any unpaid overtime to the non-exempt worker who “kept in touch” with the supervisor while “off the clock.”

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.