EPLI Risks: Mobile Devices and Working Off-The-Clock

EPLI Risks Mobile Devices and Working Off-The-ClockIn today’s society, it is commonplace for employers to provide mobile devices to their employees. While this may seem like a luxury, employees inadvertently spend more time working, both on and off the clock, sparking debate from employees and the Department of Labor for unfair ethics. An Employment Practices Insurance Program can help to mitigate these risks and protect companies against potential litigation as a result of these practices.

According to the Pittsburgh Post-Gazette, a long standing regulation titled “de minimis,” was established  by the U.S. Department of Labor and allows employers to disregard infrequent and trivial amounts of work that cannot practically be recorded for payroll purposes. In other words, the extra few minutes spent checking emails and texts on unpaid breaks has gone largely ignored by employers, deeming the miniscule working time unworthy of compensation.

As these practices are becoming increasingly popular, it is evident that regulators and lawmakers never defined what amount of time is worthy or unworthy of compensation.  What’s more, the employee is put in a difficult position in terms of requesting that his or her time be documented.

For example, employment lawyer Martin Saunders begged the question, “From the employee’s perspective, you could look cheap or something like that, if you’re looking to be paid for every minute…Do you start to round up every 30 seconds?”

In order to determine who is qualified to receive overtime, the Fair Labor Standards Act will need to be evaluated, which is complex. However, generally speaking, employees who hold positions below managerial levels are likely to be the most impacted if the laws are changed.

Various policies exist on additional overtime hours for employees ranging from restricting employees from signing in to company systems after hours to expecting employees to be available 24/7. While the “40 hour workweek” model is becoming an idea of the past, additional labor for employees must be compensated.

Jim Nicholas, an employment and labor lawyer based out of Boston, has mentioned that businesses that are well-versed in wage law have likely constructed policies that strictly prohibit workers from accessing mobile devices after hours to avoid legal battles.

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