Just how nervous should companies be about FLSA lawsuits over employee smartphone use? (Hint: very)

“Once is happenstance. Twice is coincidence. Three times is enemy action.”

(I’m pretty sure that was from Ferris Bueller)

Yesterday, in the Wall Street Journal, I read Lauren Weber’s article “Can You Sue the Boss for Making You Answer Late-Night Email?” And the answer is yes, provided that you are a non-exempt employee under the Fair Labor Standards Act and the time you spend answering that email is more than a few minutes a week.  It’s no different than when an employee checks company email at work. Work is work. Employees get paid to work.

Ok, so there’s the WSJ article. And then I read yesterday (here) on Seyfarth Shaw LLP’s Wage & Hour Litigation Blog that the U.S. Department of Labor Wage and Hour Division announced a request for information (RFI) regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours.”

Next, consider that the Department of Labor is in the process of updating its overtime regulations, most notably, to raise the minimum weekly salary threshold to be considered “exempt” under the FLSA.

One, two, three.

Now, look here. I got a 780 on my Math SATs. But, even without that, I can do the um, what’s the word? Oh, addition. (I didn’t do so good well whatever on the English section). More non-exempt employees + more smartphone-using employees (35% of employed online adults say the internet, email and cell phones have increased the amount of time they spend working) = more wages that should be paid.

So, folks, if you have non-exempt employees using smartphones for work and you don’t want them checking email (and doing other work on them) outside of normal working hours, you need to make that clear. Additionally, make sure that the employees you consider “exempt,” who are checking email outside of normal working hours, are indeed exempt. Otherwise, that could be a disaster. The same goes for the people you consider “independent contractors.” (Misclassifying employees as independent contractors can be equally disastrous).

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