Working remotely has never been easier thanks to the proliferation of mobile devices like smartphones and tablets. Enabling employees to do work outside of the office and standard work hours can be a boon for productivity, but it carries a legal risk for employers: unexpected claims for overtime pay. Under the federal Fair Labor Standards Act (FLSA), non-exempt employees must be paid overtime compensation for work they perform for the employer’s benefit in excess of forty hours in any workweek. Work done remotely, such as responding to emails on a smartphone or drafting a report on a laptop at home, could push an employee’s work hours in a given week beyond the forty-hour threshold. FLSA violations can occur unexpectedly because an employee need not have been asked to work beyond the 40-hour workweek to be entitled to overtime pay.
Two cases illustrate the risk of allowing employees to work outside of the office using mobile devices. In Allen v. City of Chicago, a Chicago officer sued the Chicago Police Department under FLSA for requiring him to work “off the clock” using a department-issued Blackberry device without receiving overtime pay. A Chicago federal district judge conditionally certified a collective action to allow 200 similarly situated officers to join in the lawsuit.
In O’Neill v. Mermaid Touring Inc., the former personal assistant of pop artist Lady Gaga, Jennifer O’Neill, sued for overtime compensation under FLSA. O’Neill alleged that she worked 24/7 because she was expected to have her phone on in order to respond to Lady Gaga’s calls at any time of the day. A New York federal district judge recently denied the defendants’ motion for summary judgment that O’Neill’s on-call time is not compensable, thus setting the stage for trial in the case to begin on November 4.
Allen and O’Neill highlight the need to institute clear policies spelling out the authorization an employee must obtain working remotely with a mobile device. Organizations that allow employees to use mobile devices for work purposes should require employees to keep track of the time they work remotely or consider installing software on that employee’s mobile device that automatically performs such a timekeeping function. Taking proactive measures to manage mobile device usage at work is crucial to preventing employees from secretly racking up overtime hours and then demanding compensation for it.
