Law: Time to limit off-the-clock work?

Employers appreciate the employee who is willing to do some work after hours, responding to email, taking or making phone calls, or otherwise engaging in work-related communications from a laptop, smartphone or other electronic device.

However, an employer unwittingly can accrue liability for overtime pay as a result of such activity because employers must pay their employees for checking and responding to work-related emails during what would normally be the employee's personal time if that employee is classified as non-exempt under the federal Fair Labor Standards Act (FLSA).

The rule also applies to any form of communication, such as texting, instant messaging and phone calls. Obviously exempt employees who are paid on a salary basis do not pose any risk with regard to wage and hour exposure for their use of smartphones after work.

In one pending 2014 class-action case involving sergeants in the city of Chicago's police department, the employees filed a lawsuit under the FLSA claiming that the city owed overtime for work the sergeants performed on their BlackBerry devices outside their normal working hours. The sergeants claim that the Chicago Police Department had a 'long-standing and unwritten” policy requiring them to be on call and responding to work emails, voice-mails and text messages 24 hours a day, seven days a week regardless of their location.

Furthermore, the sergeants claim they were not compensated for the time spent receiving and responding to these communications. The city denies the claim and is relying on the defense that it should not be liable for overtime if it had no actual knowledge of the off-the-clock hours worked by the employees, and the employees failed to follow the established process to report overtime work.

The lawsuit is pending but should be monitored and, at a minimum, trigger warning alarms for every employer.

Assume, for example, that your diligent employee spends, on average, an extra 15 minutes per day after-hours answering the phone and responding to texts and emails. That time results in an extra five hours a month, or 60 hours a year, or two weeks of overtime per year.

Those few extra minutes a day can cost a business substantial sums with additional, potential liability for double damages and attorney's fees (both yours and theirs) if the employer has failed to pay the employees for the time and is compelled to do so as a result of litigation or a government audit arising out of a complaint by a disgruntled employee.

Of course, if the time devoted to these tasks is truly negligible, such as a short yes-or-no email on a rare occasion after hours, any risk of liability is unlikely. However, lengthy discussions or long email strings may lead to a very different result.

While this may seem unfair to employers, they can take steps to limit their liability. For example, employers have the right to control and regulate after hours-work. Employers should have a written policy in place that addresses and regulates after-hours work for non-exempt employees.

Such a policy could be as simple as this: 'No work beyond an employee's scheduled work hours is permitted without management's specific pre-authorization. This prohibition extends to every type of business connected activity, such as reviewing and responding to phone calls, voice mails, emails and texts outside of your regular work hours.”

In addition, but no less important, the policy should require that non-exempt employees report the time they spend on after-hours work for each pay period on detailed time records, and employers should pay the employees accordingly.

Remind employees of the need for authorization before performing overtime work, and also remind them of your policies against performing unauthorized work. If they disobey, follow through with discipline against employees who violate the policies. For example, you can confiscate employer-owned phones or suspend remote-access privileges.

While such policies may not provide an employer with absolute immunity, they are a good start to limiting off-the-clock claims.

' Wilford H. Stone is with Lynch Dallas Attorneys at Law.