Nonexempts on the phone or online after hours? NYC prepares to tackle the paid-time problem

It’s no secret that employees use their phones, tablets and other electronic devices to perform work after hours. That creates all sorts of problems with employee burnout in general.

In particular, it causes overtime pay problems for employers whose nonexempt employees dial in or log on after hours.

At least one jurisdiction is looking at ways to prevent such off-the-clock compensation issues. New York City has released a proposed ordinance that would prohibit employers from requiring employees to access work-related electronic communications outside their normal working hours.

Could this be the beginning of a nationwide trend?

If you can unplug here, you can unplug anywhere

An exception to the unplugging rule would be made if employees need to be on-call 24 hours a day while they’re working (for example, doctors) or you need to contact employees in emergencies.

However, “emergencies” would be defined narrowly. They would encompass sudden and serious events or unforeseen changes in circumstances that would require immediate action to avert. It wouldn’t include circumstances such as staffing shortages due to too many employees vacationing at once.

The ordinance, if enacted, would apply to any employee who works longer than 80 hours per week in New York City, which is about the equivalent of just two weeks of work. Those 80 hours wouldn’t need to be continuous, either. So, if you’re located in any New York suburb, New Jersey, Connecticut or anywhere else for that matter, and have employees who work in the city, you’d be covered.

Employers that have at least 10 employees would be covered, except public employers. In counting to 10, you’d have to count all employees, regardless of where they normally work. If your employee count fluctuates, you could determine your size for the current calendar year based on the average number of employees who worked per week during the preceding year.

Notice posting and penalties would also apply.

Time to take a look at employees’ after-hours use of electronic devices

The problems of employee burn out and unpaid overtime are real. At a minimum, you should adopt a clear, written policy regarding employees’ use of electronic devices during nonworking hours.

Your policy should hit the following points:

• It should delineate the usual working hours for exempt and nonexempt employees. If you classify employees in some other way, the policy should cover each class of employees.
• It should list the categories of paid time off, including vacation days, personal days and sick days to which employees are entitled.
• And finally, it should specify that employees who take time off (paid or unpaid) should not use their electronic devices for work during that time.

Ask employees to sign and return an acknowledgment of the policy.

Note: The Fair Labor Standards Act requires employers to pay employees who use their electronic devices after hours or when they’re off. However, you can discipline them for doing so. Exempts must be paid for the week; nonexempts must be paid for their working time.