By Daniel Moore
As long as there have been work-issued mobile devices, businesses have turned a blind eye, or an inconsistent one, to a thorny issue underlying the unspoken expectation for employees with those phones and laptops: always be on call.
Now federal labor regulators may revise a standard governing what amount of time should be considered too insignificant to compensate outside scheduled work hours.
The increasingly entrenched idea of quickly answering an email, a text or phone call outside of the traditional workday has muddied the so-called “de minimis” rule. Established by the U.S. Department of Labor, the decades-old standard allows employers to disregard infrequent and trivial amounts of work that cannot practically be recorded for payroll purposes.
But regulators and courts never specified what duration of time is unworthy of compensation. This has led some businesses to largely ignore time spent on a mobile device outside of work hours.
“They expect it, but they don’t compensate their employees for it,” said Darren Weiss, a labor and employment lawyer for Baltimore, Md.-based law firm Offit Kurman.
And it’s hard for workers to demand overtime. “From the employee’s perspective, you could look cheap or something like that, if you’re looking to be paid for every minute … Do you start to round up every 30 seconds?” asked Martin Saunders, an employment lawyer for Pittsburgh-area law firm Steptoe & Johnson.
A GAMUT OF POLICIES
The Labor Department in August said it intends to seek public input on how to refine its wage and record-keeping standards rule for work performed off-the-clock on electronic devices.
Employment law dictating who qualifies for overtime under the Fair Labor Standards Act is complex. But generally, rank-and-file office support staff below the managerial level would be affected if the rules changes, particularly clerical, bookkeeping, secretarial and inside sales fields, given the importance of mobile communication to their jobs, employment experts said.
The gamut of mobile work policies ranges from requiring workers to always be available to prohibiting employees from logging in to any mobile system outside of scheduled hours.
The most successful strategies, Weiss said, meet somewhere in the middle. It’s possible, by employing a software system that allows an employee to sign in from remote locations, to measure accumulated time worked.
Some companies have crafted a “40-plus-hour” workweek model, in which the employer assumes a certain amount of small tasks to add up, he said.
Businesses well-versed in wage law have likely already crafted a sophisticated policy prohibiting use of mobile devices after clocking out, said Jim Nicholas, an employment, labor and benefits lawyer for Boston-based Mintz Levin.
Businesses are at risk if they haven’t acknowledged the realities of how the definition of “de minimis” has changed. The standard was intended to allow employers to round to the nearest hour if an employee clocks in a couple minutes prior to or after the scheduled start of a shift.
“With smartphones, you can see how that concept is beginning to be eroded,” Nicholas said.
Employees at home for the night will get an email from a supervisor. “They respond to that email in real time, and that email response may only take a minute or two. But when you aggregate several emails over the course of the evening, then you’re talking significant time.”
JUST ONE QUICK QUESTION?
There’s perhaps no better illustration of how mobile devices have upended the conventional wisdom of trivial time than the lunch break. It’s in most cases written into state laws as a period of uninterrupted, unpaid time.
Does a quick question, such as pulling away a worker to grab a file, constitute overtime?
“Any small request from a manager, no matter how small, is not considered de minimis” and should be compensated, said Saunders.
But Nicholas said an employee can’t ask for overtime pay simply by answering a question during lunch.
It’s when employees get in a habit of answering quick questions, particularly by text and email, that businesses have a liability issue, said Judy Conti, federal advocacy coordinator for the National Employment Law Project, a Washington, D.C., nonprofit that advocates for workers rights.
“I get why workers would want to do it … I like to check email after hours because I’d rather see what’s there,” Conti said. “But workers need to be able to turn their brains off. (Labor Department guidance) is something that could also help us achieve better balances between work and our personal lives and allow employees to truly have time off.”
THE VIEW IN PITTSBURGH
During a recent bustling lunch hour in downtown Pittsburgh, professionals carried laptops and iPads and chatted hurriedly on their smartphones while browsing options at the farmers market. Omar Ornelas, employed by a downtown consulting firm, stood outside scrolling through his phone. He regularly checks email and assists clients on the weekend.
“They don’t say it, but it’s expected of us to do,” Ornelas said.
When asked about whether he bills for overtime, he said he faces difficult situation. It’s largely a judgment call based on the substance of the client’s questions.
He typically won’t bill for reading and responding to emails that involve easy answers. But if they require additional work beyond a quick response, he’ll consider logging those hours.
“It’s definitely a gray area,” he said.