Tucked inside the Obama administration’s Semiannual Regulatory Agenda this spring was a Department of Labor initiative worth watching: A Wage and Hour Division effort to study how employees’ after-hours use of technology might affect wages and overtime pay.
The issue: Timespend—often on their own phones—checking email, responding to texts and having work-related phone conversations before clocking in or after punching out.
The question: How, and how much, should they be paid for that time?
The 24/7 connectivity enabled by smartphones drives the issue.
The agenda item, headed “Hours Worked Under the Fair Labor Standards Act,” states that the Wage and Hour Division will solicit comments “on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.”
The compensability of time spent by nonexempt employees replying to emails and fielding calls at home, after scheduled work hours, is a topic that is gaining attention—especially among plaintiffs’ attorneys who sense the emergence of a new, lucrative revenue stream. Several such wage-and-hour lawsuits have already been filed, demanding overtime pay for early mornings and evenings spent filling out online reports and responding to messages from supervisors.
The rise of telecommuting has also raised questions about compensability for these types of activities. For example, when does the workday begin and end when a telecommuter’s co-workers may be three time zones away, and phone conversations and email strings carry on after normal working hours?