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Employment Law, Spring 2010

A Look At Today’s Technology Through The Fair Labor Standards Act

In 1985 President Ronald Reagan awarded the first National Medal of Technology and Innovation to a young computer whiz from California named Steve Jobs. Jobs’ company, Apple Computer, had accomplished the unthinkable and brought desktop computing to the masses. The digital revolution was in full swing and the repercussions were huge. Word processors, email, the internet—the effects of this new era of productivity and communication continue to touch every aspect of our lives.

In the late 1980s doctors began to carry electronic pagers that would alert them when their services were needed. A decade later mobile phones had become standard fare for most professionals. In today’s world, phones and related devices, which can access the internet and receive email, are commonplace among employees of all stripes.

Some technology experts have noted that we are currently experiencing the next phase of computer innovation: the emergence of the mobile web—where increasingly robust phones and new interactive devices such as Apple’s iPad and iPhone will provide a level of communication and connectivity never imagined by previous generations. The power and portability of these devices means that you are always connected, always within reach.

These devices may be of comfort to some, but as many Blackberry or iPhone owners can attest, this constant connectedness often comes with a price. As one labor expert put it, “People are entitled to time off the job. Blackberrys can be liberating…but they can also shackle people to their jobs.” Brian Stelter, ABC and Writers Skirmish Over After Hours E-Mail, New York Times, June 23, 2008, at Media & Advertising.

The rate of technological change also means that the law will always be in the position of playing catch-up. Such is the case today. These new technologies have given rise to what many employees feel is a 24/7 workplace and navigating what is and what is not acceptable labor practices can be increasingly difficult.

Much of today’s labor law practice is rooted in an industrial age mindset, which does not comport with today’s service-based economy. Professional services such as engineering and legal firms, dentistry, and doctors’ offices often rely heavily on skilled non-exempt employees to handle the mountainous degree of record-keeping and clerical work these businesses require. In recent years, increasing numbers of legal secretaries and office managers who are paid hourly wages are being asked to carry smart phones and other devices which, in essence, tether them to their job at all times. In many cases, even after hours these employees are expected to respond to calls or emails almost immediately. As a result, a number of lawsuits have arisen in recent years charging that employers who compel non-exempt employees to respond to calls and email after regular business hours are liable for overtime pay to these employees under the Fair Labor Standards Act (FLSA).

These charges raise several intriguing legal questions such as: what constitutes “work?” Is responding to email and answering calls activities that require compensation?

Unfortunately, the law is somewhat ambiguous in this regard since many of these issues have arisen from relatively new and fluid technologies, which are a far cry from the rigid employment practices of industrial America. Consequently, employers would be wise to familiarize themselves with the laws on the books, which directly or indirectly pertain to these issues.

According to the Code of Federal Regulations Pertaining to U.S. Department of Labor, a non-exempt employee “is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived.” 29 CFR 785.16. The “on-call” nature of carrying a mobile device is called into question by the commencement clause of this statute.

However, “[a]n employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.” 29 CFR 785.17. In the Information Age a phone call or email often is not a precursor to a transaction; it is the transaction.

Since this area of law is vague and contradictory, employers should not issue company devices to non-exempt employees, but, instead, outline usage/availability for their personal devices and compensate when necessary. Employers should limit their use of these technologies or devices by policy.

According to the Code of Federal Regulations Pertaining to U.S. Department of Labor, employers do not have much of a choice. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 CFR 785.12. This is regardless of whether the work occurs at the premises or job site or at home. 29 CFR 785.12. In addition, this is regardless of whether the employer wants to pay the employee. “Work not requested but suffered or permitted is work time.” 29 CFR 785.11.

Be proactive about making clear what is and is not compensable. “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” 29 CFR 785.13. Set forth agreements about availability, use of email and mobile devices and compensation for any additional work.