According to the Pew Research Internet Project:
- 58% of American adults have a smart phone;
- 67% of cell owners find themselves checking their phone for messages, alerts, or calls, even when they didn't notice their phone ringing or vibrating;
- 44% of cell owners have slept with their phones next to their beds because they wanted to make sure they didn't miss any calls, text messages, or other updates during the night; and
- 29% of cell owners describe their cell phone as "something they can't imagine living without."
With smart phones and VPN access readily available, a significant number of employees likewise have flexibility to conduct business from almost anywhere and at any time. Away from the workplace and outside normal working hours, employees are staying connected. While this may translate into more productivity, it also translates into a greater legal risk under the Fair Labor Standards Act (FLSA), which generally requires non-exempt employees to be compensated for all work performed.
As basic as these may be, the following guidelines are essential to ensuring compliance with the FLSA:
- Consider limiting the number of non-exempt employees to whom the company issues smartphones and employees who have access to company email and remote VPN access.
- Implement a clearly articulated policy regarding recording of work time and rules relating to remote work. The policy, for instance, should specify whether employees are required or expected to check company email away from "work," and it should require that employees document and report all hours worked, including time spent reviewing and responding to work-related emails and remotely working.
- Train all employees on remote work and timekeeping policies during new employee orientation and periodically thereafter.
- Train supervisors regarding their obligations to monitor and enforce these policies.
- Periodically monitor time records and emails of non-exempt employees to ensure compliance, and consistently enforce policies relating to remote work and recording of work time.
TIP: This is not the time to "look the other way." If non-exempt employees are regularly checking and responding to emails from home, but their time records never include hours outside of the normal workday, there is a problem.