Last year I wrote about the risks associated with providing company issued cell-phones or PDA’s to nonexempt employees. Since that post, there continues to be lawsuits filed seeking unpaid overtime for the off-the-clock time nonexempt employees spend reading and responding to work-related e-mails. The most recent example is that of a police sergeant for the City of Chicago who filed a collective action on behalf of all similarly-situated police officers who were provided PDA’s by the City and who were required to review and respond to work-related e-mails after hours. A copy of the complaint can be downloaded here.
Company’s providing their non-exempt employees with PDA’s should carefully review their policies and procedures to ensure that they have defensible positions in the event they are confronted with an overtime suit based on the time spent reading and responding to e-mails after hours. Some considerations that I proposed last summer include:
- Do not provide nonexempt, hourly employees with company issued phones capable of reading or responding to e-mail (i.e., smart phones).
- Purchase a technology solution that captures the amount of time the user spends reading and responding to e-mail and pay nonexempt employees for that time.
- If the employer does not intend to pay for this off-hours review of e-mails, it should clearly set out its expectations that employees should not read and review those messages outside regular work hours. For example, implement policies that prohibit employees from reading and responding to e-mails outside of regular working hours; require employees to leave company issued smart-phones at work; require employees to program the smart phones to turn themselves off during non-working hours.
- Limit the employees that are provided with company issued cellphones to those who have a legitimate business need to be routinely contacted outside of business hours and limit that outside contact for matters where it is necessary.
- Pay employees who submit time for the non-business hours review of e-mail and then discipline the employee for violating the employer’s policy prohibiting business use of company cellphones outside working hours (if the employer has implemented such a policy).
Employers need to be proactive to ensure that the efficiencies provided by technology are not swallowed by the inconvenience and costs associated in the defense of overtime lawsuits