Off-the-Clock Emails, Phone Calls May Require Overtime Pay

Employees routinely check their smartphones at all hours for emails, text messages, voicemails, and other electronic transmissions.

The modern workplace includes anywhere within range of a wireless signal. With the pressure mounting to improve productivity, employees are increasingly expected to use smartphone technology to stay connected to their jobs on nights, weekends, and even vacations.

Although smartphones and other personal electronic devices offer employers and employees many advantages in the workplace, use of these devices can have significant legal implications.

One such legal issue is whether employers must pay nonexempt employees overtime under wage and hour laws for time spent checking smartphones after work hours.

What Constitutes Work Under the Fair Labor Standards Act?

So, does an employee’s use of a cell phone after-hours constitute hours worked under federal hour?

Enacted in 1938, the FLSA requires employers to pay at least the federal minimum wage to employees and mandatory overtime pay of 1.5 times regular pay for each workweek. Even work that an employer does not request should be compensated if the employer has actual or constructive knowledge of it.

Compensable time under the FLSA has been complicated by the growing trend of employees engaging in work outside their standard workday. Specifically, the use of smartphones, e-mail, and other communication tools has challenged the traditional notion of overtime. Employers are faced with an increasing list of conceptually difficult questions regarding legal compliance with the wage and hour laws.

Assuming that an employee is not considered exempt under the FLSA, the next question is whether after-hour smartphone use constitutes work. While the FLSA does not specifically define “work,” the Supreme Court has defined it as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily for the benefit of the employer and his business.”

Generally speaking, under the FLSA “hours worked” are all hours spent by the employee participating in tasks related to work that benefits the employer, as long as the employer is aware or should have been aware of this work. This includes work-related telephone calls and emails that occur outside of their prescribed working hours.

Unpaid Overtime and Wage and Hour Class Action Lawsuits

The Fair Labor Standards Act requires employers to pay nonexempt employees at least one and one-half times their regular rate of pay for all hours worked over 40 hours within any given workweek.

Several top-tier companies, including Verizon and Black & Decker, have been sued for unpaid overtime related to smartphone use. It has been estimated that companies have collectively paid out more than $1 billion annually to resolve these wage and hour class action lawsuits, which are usually filed on behalf of large groups of employees.

Employees who prevail in FLSA wage and hour class action lawsuits can recover back wages plus interest, liquidated damages, attorneys’ fees, and costs.

Join a Free Wage & Hour Class Action Lawsuit Investigation

If you were forced to work off the clock or without overtime pay within the past 3 years, you have rights – and you don’t have to take on the company alone.

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