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DOL to Consider Rule on Device Use Outside Hours

8.19.15

Peter Gillespie was quoted in Bloomberg BNA on August 19, 2015. The article “DOL to Consider Rule on Device Use Outside Hours” discussed how many employers and employment lawyers are looking to the Labor Department for help in determining when employees must be paid for connecting with their jobs during hours they aren't scheduled to work.

“When technology changes, it's important to keep in mind that rules about paying employees properly still come into play,” Peter told Bloomberg BNA Aug. 19.

The issue of after-hours work is most likely to cause a problem “where the employee comes in after the fact and says they should have been paid for hours that weren't recorded on a time sheet,” Peter said. “If it's erratic non-regular occurrences of short duration,” the work may be considered de minimis and therefore noncompensable, he said. “The claims that are potentially problematic” are those based on regular, lengthy e-mails occurring outside of work hours, he said.

“This additional variable” creates the possibility that an employee scheduled to work 37.5 hours per week would be pushed over 40 hours and into the time and one-half overtime pay category, Peter said. If this occurs with several employees, in the aggregate it could cost an employer a lot of money, he said.

Companies should train their managers and supervisors that if they're reaching out to their employees during off-hours, they may have to pay them. “Managers and supervisors of hourly employees should realize that off-duty e-mails should be absolutely minimal, and employees should record the time,” Peter said. An employer's failure to pay an employee shouldn't be considered a willful violation if it was inadvertent, he said.

To read the full article, please visit Bloomberg BNA.

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