A number of recent lawsuits illustrate how changing workplace technology can form the basis for creative FLSA lawsuits. A wave of claims have been brought against Fortune 500 companies alleging that non-exempt employees have not been paid for "off the clock "duties such as logging into computer systems and responding to email and text messages after work hours and on weekends.
Putting aside the merits of these cases, this trend illustrates the legal implications of introducing technology into the workplace, especially when used by non exempt employees to work remotely. These cases are a good reminder of why every company should make sure that its payroll practices keep up with the fast pace of technological change, and capture all work related activities, whether they occur at work, at home, or via new channels of communication like blackberries or text messaging.
Some practical tips to minimize these types of claims include:
- Implement a clear "off the clock" policy requiring employees to report all work time regardless of where and when it occurs.
- Train supervisors to never request an employee to work off the clock.
- If issuing blackberries or remote access technology to non-exempt employees, consider requirement for them to sign an acknowledgment form noting the obligation to report all work time.
- If non-exempt employees log in and out of work on their computers, consider allowing employees to manually input time instead of automatic time stamping (which will eliminate claims for lost time due to lengthy start ups or other required steps before accessing payroll software).
Staying one step ahead of creative FLSA attorneys is no doubt difficult in today’s ever changing workplace. For that reason, we strongly recommend annual audits of payroll practices to ensure that polices and procedures are updated to adapt to technological or other changes which might have significant wage and hour implications.