Smartphone Usage After Hours
According to a recent Pew Research study, 81% of American adults have a smartphone, up from 35% in 2011. The growth of smartphone usage has made it easier and more acceptable for employees to perform job responsibilities before or after the regular working day.
For employers, however, these technological advances can be dangerous. The Fair Labor Standards Act (FLSA) requires non-exempt employees to receive overtime pay for working more than 40 hours in a week. If non-exempt employees use their phones to work after-hours, the employer could owe them overtime pay.
A 2017 case in Illinois federal court, Allen v. City of Chicago, brought this issue to light. In the lawsuit, a Chicago police officer alleged that he was required to regularly check his employer-issued Blackberry device and respond to e-mails, voice mails, and text messages while off duty but not paid overtime. The Seventh Circuit Court of Appeals ruled in favor of the City of Chicago, finding that although the officer worked overtime, the city did not have knowledge of the work in question and therefore did not violate the FLSA requirements.
Although Allen was not ultimately successful, the case does have a few lessons for employers:
As much as possible, only provide smartphones to exempt employees who are not subject to overtime pay requirements.
If non-exempt employees need smartphones, establish clear written policies to detail who should be issued a phone and what type of after-hours use is permissible.
Require the non-exempt employee to carefully track any after-hours work, and review the employee’s records for accuracy.
Provide training to managers, supervisors, and employees, to ensure knowledge and compliance.
A version of this post was originally published by Mallory Law Office, LLC.