Employers, I can see the
writing on the wall, and it’s not looking good for your continued reliance on
your non-exempt employees using their smartphones off-the-clock.
In the past few days, this
issue has picked up a ton of momentum. First, the Wall Street Journal ran an
article entitled, “Can You Sue the Boss for Making You Answer Late-Night Email?”
Then, the Wage & Hour Litigation Blog reported that the
Department of Labor’s Wage & Hour Division announced a request for
information regarding “the use of technology, including portable electronic
devices, by employees away from the workplace and outside of scheduled work
hours outside of scheduled work outside of scheduled work hours.” Finally, the
ABA Journal reminded us that the same Wage & Hour Division will likely
raise the salary floor for exemption eligibility from $23,600 a year to $50,000
a year. This significant bump in the salary test will remove a large chunk of
your employees from many of the FLSA’s key overtime exemptions.
What does all this mean? It
means that you need to take a long, hard, look at which of your employees you
are requiring to connect when they are “off-the-clock.” If you are requiring
your non-exempt employees to read and respond to emails after their work day
“ends,” you need to examine whether the FLSA requires that you pay them for
that time (more often than not at a 1.5 overtime premium).
I’m pretty certain that the
Department of Labor consider this time compensable, but I’m not so sure. Even
if reading and replying to work-related email is compensable “work,” I’m not
convinced that employers should have to pay employees for it. Most messages can
be read in a matter of seconds or, at most, a few short minutes. The FLSA calls
such time de minimus, and does not require compensation for it. “Insubstantial
or insignificant periods of time beyond the scheduled working hours, which
cannot as a practical administrative matter be precisely recorded for payroll
purposes, may be disregarded.” Think of the administrative nightmare if an HR
or payroll department has to track, record, and pay for each and every fraction
of a minute an employee spends reading an email.
Nevertheless, if you want to
eliminate the risk over this issue, I suggest you consider a couple of steps:
Audit all of your employees for
their exempt status. This audit will ensure that you have your employees
properly classified as exempt versus non-exempt.
Consider implementing an email curfew for your non-exempt employees (which has its own pros and cons).
This issue is not going away
any time soon, and illustrates the difficulty the law has keeping up with the
stunning pace of technology.
For more on this important
issue, I recommend Just how nervous should companies be about FLSA lawsuits over
employee smartphone use? (Hint: very) via Eric Meyer’s Employer Handbook
Blog.
I’m timely to a
fault. I hate being late, and go to great lengths to ensure that I am never
tardy for anything. I think it’s annoying to those around me, or least those I
live with. Just ask my kids.
Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.
Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.
Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.
Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.
Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.
Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.
Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.
Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.
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