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The Department of Labor is Unresolved About Overtime and Electronic Devices

September 18, 2015.  The Department of Labor (DOL) is scrambling to update its policies regarding what constitutes compensable work to reflect how to handle overtime and electronic devices.

Digital labor culture is rapidly changing.  Personal electronic devices have dramatically transformed the way we do — and often cannot stop doing — our jobs. We get home from work, start up our smartphones, and then refresh our office email inbox or cast a glance at our company’s Facebook page.  We complete a bunch of seemingly insignificant, one-off tasks on our synced electronic devices.  The time spent on our electronic devices can add up quickly.

There have been lawsuits against companies like Verizon and T-Mobile for asking their employees to keep working remotely on electronic devices after hours.  (See West v. Verizon Communications, Inc., (M.D.Fla. Sept. 10, 2009), and Agui v. T-Mobile USA Inc., (E.D.N.Y. July 10, 2009)).  Now, the big question the DOL must answer is:  When do those tasks completed on electronic devices become significant enough to be deemed work-related and thus, compensable?

In June, the DOL announced that it was to issue a request for public information on the topic of overtime and electronic devices by the end of August.  It’s been more than three months now, and no formal request has been issued.  The DOL just cannot seem to make headway on this complex issue.  The main challenge is determining what electronic devices use will count as compensable time under the FLSA for minimum wage and overtime purposes, and how to count it; versus what use is truly insignificant, or “de minimis,” in legal terms.

Once the DOL finally adopts and then publishes a rule, employers’ policies may have to change in ways that will not only affect our jobs, but also our relationship with our electronic devices (cell phones, tables, and laptops).

Companies may require their employees to limit their work-related electronic devices usage away from the workplace to avoid overtime for which they have not budgeted. Employees may have to carefully track and claim their digital overtime.  Managers and supervisors may have to monitor their off-hours communications with employees who are not exempt from FLSA overtime requirements and to set “electronic curfews” for their electronic devices.  We are left with the question, is this the end of the “electronic leash,” or just the beginning of a more rewarding one?

 

 

 

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