Do you require or expect your employees to check email after hours or on weekends? If so, you could be liable for violations of the Fair Labor Standards Act’s (FLSA) overtime provisions. While exempt (generally managerial) employees are not entitled to overtime pay, nonexempt employees are, and that includes time spent checking email and voicemail. For example, a nonexempt employee who works a 40-hour workweek and spends an additional eight hours a week reading and replying to work emails is entitled to overtime for those additional eight hours. More employers are requiring employees in nonexempt positions to carry PDAs with the expectation that the employee will respond to pages, emails or calls outside of normal working hours. As a result, the issue is gaining attention from employees, plaintiffs lawyers, and the federal and state agencies that enforce wage and hour laws.

In a recent dispute between ABC News and the Writer’s Guild, three new ABC writers refused to sign ABC’s standard waiver stating that they would not be paid for checking their company-issued Blackberrys while off duty. The issue was resolved when ABC agreed to clarify its waiver to make clear that writers would be paid for any significant work while off duty, but not for merely checking messages. There are other potential solutions available to employers to mitigate the risks, including:

  • Provide PDAs and remote computer access to exempt employees only
  • Require prior written approval for all overtime work
  • Restrict after hour use of PDAs

Importantly, employers should review classifications, especially with respect to those employees required to carry PDAs; and implement policies governing the use of PDAs. Of course, overtime pay is not the only issue created by PDA use. Employers are facing liability as a result of employee texting (and sexting), social media use, driving while texting, and unlawful activities such as online gambling.