By Tracy Azinge

There is no question that technology continues to alter the employment landscape.  Employers commonly allow employees to telecommute. The work day now extends to checking emails and texting on iPads and smart phones at home, in restaurants, and at the mall. What does this new reality mean for employers with respect to their obligations to compensate employees under the Fair Labor Standards Act (FLSA)? What does it mean for employees who should be compensated for time worked?

Historically, employers relied upon a safe harbor exception under the FLSA, which allowed employers to not pay their employees for “insubstantial or insignificant periods of time beyond the scheduled working hours.” However, the FLSA regulations require that employers pay employees for all measurable time worked, no matter how small.  29 C.F.R. 785.47. The telecommuting/compensation issue is on the U.S. Department of Labor’s 2015 agenda. The DOL has earmarked this as an important item and plans to solicit comments “on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.”

This is a hot button issue. In light of this anticipated enhanced scrutiny by the DOL, employers should be conscious about the time that non-exempt employees spend on telecommuting, texting, responding to emails, and taking calls after hours. As this issue gains national attention and we see a spike in this type of litigation, employers should ensure that they are in compliance with the FLSA. In addition, employers should note that their obligations concerning the use of technology beyond scheduled work hours could be subject to change in the near future. While an employer’s obligation to “pay or not to pay” for an employee’s “technological extracurricular activities” may not be entirely clear, inadvertent violations under FLSA can be a costly mistake. If in doubt, it is best to seek legal advice from an experienced employment attorney.



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