Posted on 11-Aug-09 by The Timekeeper

In today’s economy, companies of all sizes are trying to do more work with fewer employees. And that can cause a problem.

See, wage and hour laws say hourly and salaried exempt employees have to be paid overtime for working over 40 hours a week (and in some places, for working over eight hours in any given day). But there’s only so far you can go with the “work smarter, not harder” thing — at some point, doing more with fewer people means the people you have left are going to have to put in more hours.

And with technology being what it is, those extra hours sometimes take place outside the office. It may be the employee deciding on his/her own to put in some time to try to catch up. It may be the employer requiring on-call time or other out of office work. And a lot of times it falls in that big ol’ gray area, where the employer didn’t exactly mandate the work, but didn’t prohibit it, either… and is perhaps even encouraging it to some degree or another.

Thing is, the FLSA says employees have to be paid for work, even if it’s voluntary.

So What Is “Work,” Anyway?

So the question becomes, if an employee checks business email at home or answers customer calls while on-call for the weekend, is that “work”?

I think most employees (and probably many employers) would say it is. But at least some employers beg to differ. Thus ariseth The Lawsuits.

The Wall Street Journal reports on several: a proposed federal class-action by current and former employees of T-Mobile USA Inc., a federal lawsuit filed by a former employee of CB Richard Ellis Group Inc. and a California case involving employees of Lincare Inc., a medical technology provider.

In the T-Mobile case, the employees allege they were required to use company-issued smartphones to deal with emails and voice messages during off hours, and were not paid for that time. Similarly, the CB Richard Ellis maintenance worker says he was issued a company cell phone and required to respond to messages during his off hours without pay. In the Lincare case, employees are seeking compensation for time spent answering customer questions while on-call.

No Clear Guidance (Yet)

Problem is, the courts haven’t definitively addressed this issue, and technology is evolving rapidly, making it possible for more and more employees to work (or not-work, I guess, depending on your point of view) out of the office. The only guidance so far from the DOL is that workers only have to be paid for being on-call if there are significant restrictions on where they go or how they spend their time or if they get paged so often they can’t reasonably use their on-call time for personal pursuits.

Unfortunately, one person’s “reasonable” is another’s “totally out of the question.” Which can really be an issue when management is in one camp and employees are in the other.

And I suspect that’s just going to lead to even more of this type of lawsuit.

Can’t We All Just Get Along?

The way I see it, there’s got to be some middle ground, where employees get compensated fairly for the time they spend on a company’s behalf regardless of where they are when they put in the time, but companies aren’t put on the hook for employees deciding on their own to put in hours of unrequested, unrequired overtime from their “home offices.” I think its high time for wage and hour regulations and laws to catch up with both modern technology and the realities of today’s workplace.

So what do you think? Is it “work” if an employee has to answer customer inquiries from a company-issued cellphone over the weekend? How about if the employee decides on her own to check her work email after hours using her own home PC? What kind of compromise can we reach that’s fair to both employers and employees?

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