Applying Wage and Hour Laws to the 21st Century Workforce

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

Technological advancements and flexible workplace arrangements have drastically increased the potential exposure to employers for off-the-clock work performed by non‑exempt employees.  With the number of lawsuits involving technology-related off-the-clock work claims on the rise and the federal government’s increased emphasis on investigating off-the-clock work violations, employers need to review their policies and procedures related to non-exempt employees’ ability to perform work remotely through Blackberries and other personal digital assistants (PDAs) to ensure compliance with federal and state wage and hour laws.

In this series of blog posts, we will address the following topics: (1) general wage and hour law requirements; (2) recent activities by the Department of Labor (DOL) to combat off-the-clock work violations; (3) meal breaks; (4) records of potential off-the-clock work violations; (5) telecommuting risks and rewards; and (6) issues involving exempt employees.

First and foremost, an employer must understand what constitutes “hours worked” and how the term is constantly changing with the technological advances available to businesses to help them operate more efficiently.

What Constitutes Hours Worked?

The Fair Labor Standards Act (FLSA) is one of the oldest federal laws regulating the work environment dating back to 1938. The FLSA is administered and enforced by the DOL’s Wage and Hour Division. All work that an employee is “suffered” or “permitted” to work must be compensated by the employer. Some work defined as de minimis work (a few seconds or minutes here and there that are too inconsequential to worry about) does not have to be compensated. As discussed below, the de minimis standard is generally narrowly applied.

The DOL has adopted regulations to help define what does and what does not count as hours worked. Essentially, activities that an employee performs that are for the primary benefit of the employer constitute compensable work time. Interpreting the DOL’s enforcement position, courts have historically ruled that an employer is liable for off-the-clock work if the employer knew or should have known that the employee was working.

To determine when an employee’s workday begins and ends, an employer must determine when the employee performs his or her “first principal activity.” The performance of principal activities is always compensable. Preliminary and postliminary activities are not compensable unless they are an integral and indispensable part of an employee’s principal activities. Integral and indispensable activities are those that are essential and closely related to the principal activity. For non-exempt employees, all periods of time between the commencement of the “first” principal activity and the completion of the “last” principal activity must be included in hours worked.

The DOL has applied the continuous workday rule as an enforcement position for a number of years. In 2005, the U.S. Supreme Court embraced the DOL’s interpretation in the IBP, Inc. v. Alvarez decision, stating that “consistent with our prior decisions interpreting the FLSA, the [DOL] has adopted the continuous workday rule, which means that the ‘workday’ is generally defined as ‘the period between the commencement and completion on the same workday of an employee’s principal activity or activities.’”

With today’s modern technological advances, determining when an employee’s workday begins has become increasingly more difficult. For example, are employees performing any principal activities at home before they start their commute to work? If so, is their commuting time being performed during the continuous workday and thus compensable? A number of lawsuits have been filed across the country arguing this very point. Even if an employee performs no work at home, but prior to clocking in is asked to perform compensable work at the office, has the employee’s workday begun prior to the employee clocking in?

Stay tuned for future installments of Applying Wage and Hour Laws to the 21st Century Workforce, where we will continue to discuss the role of technology in understanding and documenting hours worked and provide food for thought on how employers can stay on top of new developments in this increasingly important area of employment law.

Cynthia A. Bremer is a shareholder in the Minneapolis office of Ogletree Deakins, and Charles E. McDonald, III is a shareholder in the Greenville office of Ogletree Deakins.

 

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!