How to Build in Overtime: Non-Exempt Employees and Smart Phone Use


Make sure you are recording time and paying employees for work on their phones during non-work hours.
Make sure you are recording time and paying employees for work on their phones during non-work hours.

I am sitting watching the news when a report comes up talking about a lawsuit filed in Chicago by a police sergeant. He claims as a non-exempt employee is due overtime for all the off-duty use of his Blackberry. The courts have allowed him to seek other members of the police department for a collective suit that could cost the City of Chicago millions of dollars. It is the perfect lesson in how to build in overtime for your non-exempt employees.
Working off the clock
Jeffrey Allen was issued his Blackberry in 2006 and he said that it was an everyday occurrence for him to receive one or two emails during his off duty hours. He said most every officer below the rank of lieutenant was similarly treated. He said he would receive 1500 emails a month and engage in long calls. He was tired of working for “free” and said the city should not expect its employees to work without pay.
The Fair Labor Standards Act does indeed say that non-exempt employees who perform more than “incidental“ work that is performed “off-the-clock” must be compensated for that work. And if that time puts them up over 40 hours in the workweek then they are owed overtime pay for that time. It is really pretty simple to understand.
The problems arise when this time is not recorded and if time is not recorded it builds up. Often for years. Until someone complains. If one person complains then often there are other employees that are in the same circumstances and with multiple people owed back pay for multiple years the bill gets big. In some cases very BIG. I wrote about this in Pay Attention Managers: You have to track time ACTUALLY WORKED!
How do you insure you don’t pay your non-exempt employees overtime for smartphone use? Here are some answers:

  • Don’t issue them a phone.
  • Don’t call them or email them during non-work hours.
  • Have them work fewer than 40 hours a week so that if they do work outside of regular work hours you have a buffer built in. You still have to record the time, but it is not OT.

These are not particularly reasonable solutions however. The reality of the world is that often we need to have those employees connected and we cannot have them work fewer hours as generally we are running thin staffs as it is. So what is the workable solution?
Workable solution
Here is, in my opinion, the best way to handle the situation of having non-exempt employees working on smart phones.

  • Restrict the number of times you communicate with non-exempt employees during non-work hours.
  • Have a policy that instructs employees to only answer emails with a “code” word that indicates it is something that is urgent. The word urgent may work if you don’t over use it already.
  • Only call when you really, really, really need to call.
  • Make sure you have a policy that requires employees who take those calls and answer those emails to record the ACTUAL time spent on those activities and make sure they are compensated for that time. If you can’t afford the overtime schedule their time appropriately.
  • Make sure the policy states that employees are required to report any attempt by their manager to make them perform work of the clock.

Following these suggestions will save you money, a lot of money, in the long run. The short-term gains are not worth it.

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