Risk not so remote: overtime for working on mobile devices

by Elijah Yip

Working remotely has never been easier, thanks to the proliferation of mobile devices such as smartphones and tablets. Enabling employees to perform work outside the office in addition to their standard work hours can be a boon for productivity, but it carries a legal risk for employers: unexpected claims for overtime pay.

Left to their own devices, employees may work 24/7

Under the federal Fair Labor Standards Act (FLSA), nonexempt employees must be paid overtime compensation for work they perform for their employer’s benefit in excess of 40 hours in any workweek. Work performed remotely, such as responding to e-mails 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 40-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 recent cases illustrate the risk of allowing employees to work outside the office using mobile devices.

In Allen v. City of Chicago, a police officer sued the Chicago Police Department under the 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 police officers to join the lawsuit.

In O’Neill v. Mermaid Touring Inc., Jennifer O’Neill, the former personal assistant of pop artist Lady Gaga, sued for overtime compensation under the FLSA, alleging she worked 24/7 because she was expected to always have her phone on so she could respond to Gaga’s calls at any time of the day. A New York federal district judge recently denied the star’s argument that O’Neill’s on-call time wasn’t compensable, setting the stage for a trial scheduled to begin on November 4.

Bottom line

These cases highlight the need to institute clear policies spelling out the authorization employees must obtain before working remotely using their mobile devices. Organizations that allow employees to use mobile devices for work purposes should require them to keep track of the time they work remotely or consider installing software on employees’ personal devices that automatically performs a timekeeping function. Taking proactive measures to manage mobile device usage for work is crucial for preventing employees from secretly racking up overtime hours and then demanding compensation.

Elijah Yip is a partner with Cades Schutte LLP in Honolulu and chair of its digital media and Internet law practice group. He is a frequent contributor to Hawaii Employment Law Letter and author of the blog LegalTXTS blog. He may be contacted at eyip@cades.com.

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