It appears that the US Dept. 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 email, voicemail, 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 email, 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 email 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 in a recent Bloomberg BNA report 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 email, text messages and telephone calls. Such employers should consider the following: