December 01, 2014
Author: Mr.
In contrast to some of the historical work time issues that have spawned numerous interpretations, agencies and courts have provided employers with little guidance as to when employee use of new technologies counts as hours worked. Although the circumstances may be different, employers must rely on the same framework used to analyze historic work hour issues:
- does the activity primarily benefit the employer;
- is this a basic work function, or is the activity integral and indispensable to principal activities;
- did the employer know or should it have known about the activities; and
- are the activities de minimis?
A. Remote Access to Computer Systems
Regardless of whether employer’s maintain their own computer systems or use remote servers or cloud computing, employee access to these systems presents a challenging work time issue. Remote access itself is controlled by employers and is typically only allowed because an employer has decided that such access is generally beneficial to the employer. An employer can avoid any work time issues by limiting remote access to exempt employees.
If non-exempt employees are provided with remote access, any particular access event must be tested to determine whether it is job related and benefits the employer or just the employee. For example, an employee who uses remote access to look up the balance on a retirement account is not engaged in work. However, an employee who uses remote access to review work documents or respond to customer or manager emails is probably engaged in work E.g., Yerger v. Liberty Mut. Group, Inc., 2011 WL 5593151 (E.D.N.C. Nov. 15, 2011) (remote access to computer network by field auditor). Even if remote access is work related, employee time only counts as work time if the employer knew or should have known of the activity.
If an employee is exchanging emails with a manager, the employer has actual knowledge of the employee’s activity and the time would be compensable. Beyond this, however, the question is whether the employer’s record of electronic access (which virtually every employer will have) establishes constructive knowledge of the activity. This may depend on the nature and sophistication of the employer. It may also depend on the frequency and duration of the activities. A court is probably far less likely to imply constructive knowledge of short and infrequent access. Moreover, short and infrequent access may be found to be de minimis.
B. The Use of Mobile Devices
Many employers have determined that they benefit from having employees “plugged in.” The use of cell phones, email, texting, and even twitter can allow for 24x7 service and amazing” responsiveness. Essentially, employers can have their entire workforce on-call without designating anyone as an on-call person. This raises the question whether traditional rules regarding on-call time should apply. At a minimum, employers must pay employees for all time during which they are actually responding to employer or customer calls, emails, or texts on mobile devices. E.g., Rutlin, 220 F.3d 737. In addition, if such mobile communication so dominates an employee’s time that the employee cannot use the time for his or her own purposes, use of mobile devices could transform periods of time, probably defined by the first and last contact, into work hours. E.g., USDOL Opinion Letter FLSA2008-14NA (Dec. 18, 2008).
The parallel to on-call time is merely the start of the inquiry with mobile devices. As with remote access to computer systems, employers are likely to have electronic records that establish when and for how long employees use their mobile devices. And, a comparison of that information to the work time reported by an employee may identify times when mobile devices are in use that are not being compensated. In relation to these times, the question is whether the mobile devices are being used for personal or work purposes and, if for work purposes, whether the employer knew or should have known of the use. If use for work purposes is infrequent, of limited duration, and intermixed with personal use, then any unrecorded work use may not be known, may fall within the de minimis doctrine, and may be non-compensable.
C. Social Media Activities
Unlike remote computer access and the use of mobile devices, employers have no ability to control or limit employee access to and use of social media away from the workplace. Like any traditional non-worksite location, work may be performed on social media sites. For instance, employees may exchange information with customers or clients or engage in promotional work on such sites. However, social media activities may well be personal rather than work related and any work-related activities are likely to be interspersed with personal activities. Moreover, even if work related and extensive, social media activities may not be known to employers. In fact, many states and government agencies are attempting to restrict employer access to employee social media sites. In these circumstances, if an employee does not report employment-related activities on social media sites, such social media activities may not count as hours worked.
