The latest guidance on overtime from the Department of Labor does not include how to consider employee’s off shift use of mobile devices. Specifically, since employees routinely check their work email from their mobile device and can respond at any time day or night, does their time spent doing that qualify as overtime? Previously the ruling in the courts was checking email was classified as de minimus meaning insignificant, therefore does not qualify for overtime pay.
Overtime is to be paid when an employee does work that benefits the employer. Recently employers have been hit with lawsuits because employees are required to do tasks that benefit an employer such as put on or take off uniforms or clean suits, before and after their shifts. This time adds up and since it’s for the benefit of the company, the employees were awarded overtime pay.
The court has already ruled on the practice of having employees “on call”. The bottom line is if the employee is on call and has not been called, then they are not owed compensation. If they are called to work then they are owed compensation, i.e. overtime, for actual time worked.
Now that it is common practice for employees to access their email routinely, including off shift, the question for employers to the department of labor is – what are the guidelines for having to pay overtime when mobile devices and employee habits intersect to have them answer email off hours?
One of way of addressing it while we wait to see how things unfold in the court system, is to develop a policy for overtime. It should that include off shift use of their company email and text messages.
Here are some tips when creating your overtime policy:
- Make sure your supervisors are aware of the need to pay overtime on any work that may seem like just a “couple of minutes”. Like a quick phone call or text message. That kind of practice will likely create trouble when considering what is overtime.
- Be clear with your employees they are not on call and that the company is not requiring them to check their email unless otherwise directed. Perhaps being a bit stronger on this point with a clear directive: do NOT check email off shift.
- If you have a need for an employee to be on top of a project that may continue off hours, be sure that you are clear in your direction that they will be compensated overtime pay. That is unless they are overtime exempt.
- Include a statement that employees must be clearly authorized to work overtime.
- State who is authorized to make the decision and direct an employee to work overtime.
- Include, those who work overtime and are not authorized may be subject to disciplinary action.
- Ensure your timekeeping methods will reliably record overtime.
If you need help with drafting a policy, be in touch. We do these kinds of policies routinely.