Providing Mobile Devices to Employees may be Violating FLSA

Over the years, technological advances have fueled the evolution of work, allowing employees the capability to implement autonomy and authority over their work. Most organizations provide their employees with mobile devices including laptops, cell phones, and personal digital assistance (PDAs) to help facilitate a work-life balance culture. Although providing mobile devices to employees can simplify work processes and provide real-time connectivity, employers are vulnerable to  Fair Labor Standard Act (FLSA) violations when these devices are given to nonexempt employees.  

Under FLSA, non-exempt employees must be paid at least one and a half times their regular pay for all hours worked after 40 hours within a given week (also known as overtime). Technology has created an environment where nonexempt employees can work outside of the office, which makes it difficult to track hours worked. It is difficult for an employer to calculate details such as time spent checking emails and providing correspondence or connecting to the server. According to FLSA, hours worked include all hours spent by the employee participating in tasks related to work that benefit the employer.  Even if the employers did not approve the extra “hours worked”, they may still have to provide compensation for these hours, including overtime obligations. The burden is on the employer to communicate a mobile device policy, ensure that the employee understands what compensable work is, and keep track of what assignments the employee must complete.

In some situations, the cost of providing employees with a mobile device outweighs productivity.  In August 2010, a Sergeant for the Chicago Police Department filed a class action lawsuit on behalf of other officers, claiming inaccurate hourly and overtime compensation. In the case Allen v. City of Chicago, the officers claim they were required to access and respond to emails, phone calls, and other messages through a blackberry device while off work. They allege the Chicago Police Department administrates an unlawful compensation system that neglects to take into account the use of mobile devices.

 Judgment for this case is still pending before the Northern Court of Illinois. The ruling of the case and others similar to it will set the precedent for what is acceptable use of mobile devices by nonexempt employees. In the meantime while the world waits for the law to “catch” up to technology, employers should stay abreast with the latest FLSA regulations and follow Best Practices.

  • Implement a mobile device management strategy.
  • Create a policy that outlines payment for remote office technology, phone connectivity and terms of use.
  • Implement time keeping mechanisms to keep track of hours worked versus overtime claimed.
  • Educate employees on the protection of personal and corporate data on mobile devices.
  • Provide employees with proper IT provisions so they can manage their work on mobile devices
  • Create a system for reporting hourly and overtime claims and provide quick appropriate response.  
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