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Davis Brown Employment and Labor Law Blog

Employment Law Blog: It's 10:00 p.m. - Do You Know Where Your Employees Are? - August 29, 2012

If its 10:00 p.m. and do you know where your employees are...why? If they are not working the night shift, why are you following them at 10:00 p.m.? Why are you texting them at 10:00 p.m. and why are they responding to you? In 2012, Fair Labor Standards Act lawsuits have hit a record high. More than 7,000 FLSA claims were filed in Federal Court in the March 2011 to March 2012 time period. This means how you are paying your employees and how you define when they are paid becomes an increasingly important issue.

Everybody has a smart phone, a cell phone, or other mobile communications device and work is going everywhere. As an employer, you need to consider when the workday begins and ends. What is work? Where and when will it be accomplished? Publications as diverse as Marie Claireâ„¢, a fashion magazine, and the Department of Labor Statistics talk about the diminishment of work/life balance through continuing use of mobile devices to access work at all hours. All these texts and emails don't just diminish job satisfaction. Those midnight texts or quick reviews of a report at 3:00 a.m. can become time which must be paid to an employee. Upper level managers who are salaried and therefore required to work "what it takes to get the job done" might be contacting their subordinates, sending out reports, texting or otherwise creating an expectation that employees will be available at all hours. You know who you are. An hourly employee who is available at all hours and has to respond to a fifteen minute phone call or review of a report is going to rack up time for which he/she has to be paid.

Without policies and consistent practices, it is almost impossible to appropriately account for that time. Some employees will inevitably fail to report time and will be owed significant sums. Other employees may over report, inflating the general profile of time that is spent on off-site work. If you have a manager who is an abuser of this process or system, you need to speak with that manager and counsel him/her about respecting an employee's time away from work. Because it creates a budgetary consideration, a constraint for your organization, you also need to speak with employees about how they use their devices and access work systems. Apart from security measures you need to account for time and know when employees are to be paid. You don't want to wait for the Department of Labor to raise these questions when they do a wage hour review. Every employee remembers that they worked 40 hours a day, 3000 hours a week and never took a break (regardless of the rules of physics), and the Department of Labor gives significantly greater weight to the employees' version of how often they worked than they do to employers.