Finding a Balance Between Cell Phone Access to Work Email and On-Call Pay

24 October 2016 Labor & Employment Law Perspectives Blog

Long gone are the days where individuals required computer access in order to connect to the internet. Smartphones are everywhere, and the internet of things (IoT) means that common objects such as cars and phones can now easily connect to the internet to send and receive data. Unsurprisingly, it feels like most people have access to text messages and emails 24 hours a day, seven days a week, 365 days a year. Although a convenience when dealing with emergencies or staying in touch with family and friends, constant connectivity can create a tricky situation for employers.

We recently discussed how IoT can create privacy concerns because GPS-enabled devices might allow employers to track employee movement both on and off the clock. A recent class action lawsuit filed in California last week reminds us of some of the wage and hour dangers that employers face when employees have access to work-related devices. Whether workers use company-issued devices or use their personal devices, these risks arise whenever employees are permitted to have work-related access outside of the employer’s premises. In the California lawsuit, the employees claim that they were performing the tasks of (and were paid as) non-exempt employees, yet were placed “on call” without pay during non-working hours. Among other things, the employees claim that they were expected to respond to emails on their cell phone in order to address work-related concerns after hours.

So the question arises – if a non-exempt employee has access to work emails on his or her cell phone and is expected to respond to work emails outside of his regular working hours, does that mean the employee is on-call and therefore entitled to on-call pay? The general rule is that employees should receive wages for all work performed, whether on or off the employer’s premises.

But whether an employee should be compensated for the “waiting time” – the time spent not actually performing a work-related function, but waiting to potentially receive instructions regarding a work-related function – will most likely depend on the specific facts and circumstances applicable in each case. The Department of Labor and state-based agencies such as California’s Division of Labor Standards Enforcement (DLSE), have specific tests and examples of fact-based scenarios, and readers are encouraged to review their state’s applicable guidelines.

However, the basic principle is that the employee should be compensated if he or she is under the employer’s control and is not able to use the “waiting time” for his or her own purposes. For example, in California, the DLSE has issued guidance further clarifying that compensable on-call time includes times when the employee is so restricted under the employer’s control that he is unable to pursue personal activities.

From a compliance perspective, employers should be mindful of permitting non-exempt employees to have email access on personal devices and to access company devices off-the-clock. Only those non-exempt employees with a clear need for such access should be provided with out-of-work connectivity. Along the same lines, employers should caution supervisors against contacting non-exempt employees outside of working hours. Sending a short email or text that requests an equally short and quick off-the-clock response may seem harmless at the time, but could lead to wage and hour lawsuits that no employer wants to endure.

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