When on the phone means on the clock

I remember the days before smartphones, when I could only access my e-mail remotely from a laptop. I yearned for one of those cool little phones that would let me immediately respond without the need for lugging around my laptop, opening a VPN connection and logging on. And now I have it--check that: I've had it for several years. And I find that I now yearn for those times when I can power down the cool little phone and disconnect from work. But that's about all I need to worry with as an exempt employee.

What about those employees who are non-exempt and have those cool little phones with remote e-mail access? They, too, may have the longing to disconnect and not do work. Employers should have that desire for the non-exempt employees as well. Otherwise, employers could be facing unpaid time claims (including overtime claims) for time spent by non-exempt employees checking their work e-mail accounts.

Even in situations where the smartphone is the non-exempt employee's personal phone and not company-issued, the employer can still have liability for time spent on the smartphone performing work-related tasks. If the employee uses it to do work on the company's behalf, that is compensable time under the Fair Labor Standards Act (that whole "suffer or permitted to work" thing).

So, what to do? Here are a couple of thoughts:

• check your e-mail use/electronic communications policy to ensure that you have advised employees that they have no expectation of privacy in their company e-mail accounts--regardless of how the accounts are accessed
• update your timekeeping policy, e-mail policy, etc. to prohibit unauthorized time worked after hours, and remind employees that any work which might result in overtime should be approved first
• most e-mail programs have a setting that allows you to schedule when particular messages will be delivered. Train your supervisors how to use that setting so that e-mails which are being sent to non-exempt employees are delivered during normal working hours
• prohibit employees (exempt and non-exempt alike) from having remote access to the e-mail accounts without prior permission (which gives you some control over who has the ability to check e-mail during off hours)
• remind non-exempt employees that they are to record ALL time worked, including those seemingly small, incremental periods during off hours when they are accessing e-mail remotely
• perform overtime/timekeeping audits periodically; this will also help you discover any patterns in e-mail usage that you can then use to better control remote access
• if you find an employee has violated your policies and established expectations, counsel the employee on the appropriate conduct.

If you haven't updated your electronic communications policy recently, or your timekeeping/overtime policy, now is a great time to do that. It provides you with a forum to remind employees of the company's expectations.

Money, money, money, money

The holidays are, perhaps unnervingly, quickly approaching. For some employers, holiday time means bonus time. This time of year may also mark the end of a quarter where bonuses are routinely awarded. It's, thus, the perfect time for us to remind you about the treatment of bonuses paid to non-exempt employees under the Fair Labor Standards Act ("FLSA").

For those of you who are scratching your head, we may have some issues to deal with one-on-one. Yes, bonuses may count as compensation (and impact a non-exempt employee's regular hourly rate) under the FLSA. The question to ask becomes, "Is the bonus discretionary?" In other words, is it solely your company's call whether to pay the bonus? If the answer is yes, then you do not count the bonus toward the employee's regular hourly rate.

Now, did you announce that everyone would receive a bonus upon, say, meeting a productivity goal, or meeting a minimum number of hours without any missed time, or that everyone would receive a bonus because your company hit an economic milestone? If this answer is yes, then you must recalculate the employee's regular hourly rate for the time period covered by the bonus. Once that is done, you must determine if any overtime was paid to the employee. If the employee did have overtime during that period, you'll need to make an overtime adjustment payment based upon the increased hourly rate.

Some food for thought as we approach a season commonly associated with eating. Gobble up the turkey (get it? Gobble?), catch as much football as possible (get it? Catch?), and check out your bonus program (get. . . oh, never mind).

Happy bonusing!