Acknowledging the ongoing and widespread use of mobile devices by employees away from the workplace and outside of scheduled work hours, the Department of Labor (DOL) will begin to collect information on how the use of mobile devices affects employers’ calculations of work time and overtime under the Fair Labor Standards Act (FSLA).
“DOL will issue a request for information in July,” said Shawn McBurney, SAF’s senior director of government relations. “Whether the RFI is the first step in another rule by DOL is unclear at this time. However, the complications and possible burdens that would accompany a possible new rule merit SAF monitoring DOL’s actions.”
The DOL recently finalized a rule that dramatically changed overtime regulations.
The new rule doubles the threshold of those who qualify for overtime from the current level of $23,660 per year ($455 per week) to $47,476 per year ($913 per week). Between 4.2 million and 10 million additional workers will be eligible for overtime pay under the rule. In addition, the overtime threshold level will adjust automatically in the future rather than having DOL propose changes and solicit comments on those changes.
Working at a desk inside an office for eight hours a day is no longer the universal standard of work. With advances in technology, employers already struggle with how to track hours employees are working. As the lines between work and home have blurred, tracking hours has only gotten more difficult. Time spent working outside the office on mobile devices and computers by non-exempt employees can complicate work time calculations made by employers under the FLSA, and could ultimately affect overtime determinations.
“Courts and the DOL recognize that employers are not liable under the FLSA for negligible, or ‘de minimis,’ uncompensated work time, but there is little guidance on what constitutes negligible as it relates to technology and mobile devices,” explained McBurney. “Because the time spent to check and respond to e-mail on a mobile device can take as little as a few seconds, it may appear to be de minimis. However, an employee might be engaged in that kind of activity five times an hour for several hours. The law is unclear on where the line is drawn between de minimis and compensable hours worked, and this lack of clarity is especially problematic when addressing the subject of mobile device use outside work hours by non-exempt employees.”
Many employers already have policies in place regarding off-hours use of technology by overtime-eligible employees.
“While any formal rule is a long way off, business owners in the industry should review their policies on the use of mobile devices,” McBurney said. “Restricting remote connectivity to exempt employees may reduce liability and exposure for some employers.”
