Have you considered the wage and hour challenges facing employers in the new electronic communication age? If you have, you may have only considered half of the challenge. Have you considered the records that now exist illustrating access and use of electronic communication devices by your employees?
If you are handing out BlackBerrys, smartphones, and other electronic devices in the workplace, you should also have policies in place to address the wage and hour implications of having your non‑exempt employees fully connected 24/7. Because these technological advances have the ability to be tracked and records produced of the time when these electronic devices are being used, employers now are faced with the reality that additional documentation exists potentially illustrating compensable work being performed by non-exempt employees outside their regularly scheduled hours. Employers need to recognize that these records exist and are likely discoverable in an off-the-clock work lawsuit. Non-exempt employees now have the ability to leave the office and work from a client’s site, at home, a local coffee shop, etc., giving employees greater flexibility to balance their work and home lives while creating timekeeping headaches for employers.
For example, an employer’s electronic communication system normally tracks employee activity over the electronic network system. Therefore, for employers who allow non‑exempt employees to access the company’s electronic network remotely, a record probably exists showing how often and at what times an employee is accessing the company network. If requested in discovery, an employer may be required to turnover information showing the times a particular employee accessed the company’s electronic communication system. If an employee is working remotely from home at night, these records may show the log‑in and log‑off times for a particular non‑exempt employee. This record could be valuable to an employee in an off-the-clock work case and problematic for an employer.
Consider these questions:
- How accurate is the documentation showing the employee’s log‑in and log‑off times?
- Does the record necessarily correlate with the amount of compensable work time the employee was performing remotely?
- Was the employee performing compensable work or merely surfing the internet for personal reasons?
- Could the employee have logged on to the network and gone to dinner with his or her family without performing any compensable work?
These are just some of the issues that an employer faces in an off‑the‑clock work situation where documentation can be generated which may or may not be a reliable source of the amount of time that a non‑exempt employee actually spends performing compensable work time.
Other ways in which an employee’s time may be captured (but not necessarily reflective of time worked) include the following:
- Remote access to the company’s electronic communication server;
- Cell phone calls, e‑mails, or text messages which can be saved and/or retrieved from the mobile carrier;
- Security gate badge swipes indicating that an employee is on the property (but not necessarily working);
- Date and time stamps showing when an employee accessed, created, or modified a document in Word, Excel, or other similar programs;
- Date and time stamps indicating when an employee accessed, created, or modified a document in an employer’s document management system;
- GPS tracking devices on company vehicles; and
- Copiers, fax machines, and other electronic devices in the workplace that may show a date and time in which a certain event occurred, especially if an employee has to input an individual pass code to access the electronic device.
The question of whether an employer will be liable for its non‑exempt employee’s off‑duty use of personal electronic devices will depend largely on the facts of each case. If an employee at issue checks his or her smartphone once or twice in the evening, it is unlikely that such time will be compensable. However, if the employee at issue is “glued” to his or her smartphone, answering e‑mails and calls at all hours of the day or night and responding to multiple e‑mails, it is likely that a court will find such time compensable. In those situations, employers need to recognize that there are likely discoverable documentation showing the time a non‑exempt employee accessed these electronic devices which have information flowing through the company’s servers and electronic communication network.
Employers need to be aware that this documentation exists and should take periodic steps to audit its non‑exempt employee’s use of its electronic communication systems during non‑working time. Such routine audits will allow employers to stay ahead of the curve with respect to potential off-the-clock work claims involving electronic communication devices. These off-the-clock work claims are often difficult to defend because they are similar to harassment cases which often involve “he said she said” situations. This has always been the case with off-the-clock work claims. The non‑exempt employee will claim that he or she has been working outside of his or her normal working hours without proper compensation, and the manager or supervisor will either deny knowledge of such work or will state that he or she specifically informed the employee not to work outside his or her normal work schedule. With the advancement of technological communication devices, documentation may now exist to help support or defeat a claim of off-the-clock work. The reliability of that documentation will continue to be a challenge that employers did not have to consider previously.
Stay tuned for our new post in this series, in which we will discuss the use of GPS tracking devices.