Documentation of Potential Off-the-Clock Work Violations via Electronic Devices: Are You Prepared?

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

Have you considered the wage and hour challenges facing employers in the new electronic communication age? If you have, you may have only considered half of the challenge. Have you considered the records that now exist illustrating access and use of electronic communication devices by your employees?

If you are handing out BlackBerrys, smartphones, and other electronic devices in the workplace, you should also have policies in place to address the wage and hour implications of having your non‑exempt employees fully connected 24/7. Because these technological advances have the ability to be tracked and records produced of the time when these electronic devices are being used, employers now are faced with the reality that additional documentation exists potentially illustrating compensable work being performed by non-exempt employees outside their regularly scheduled hours. Employers need to recognize that these records exist and are likely discoverable in an off-the-clock work lawsuit. Non-exempt employees now have the ability to leave the office and work from a client’s site, at home, a local coffee shop, etc., giving employees greater flexibility to balance their work and home lives while creating timekeeping headaches for employers.

For example, an employer’s electronic communication system normally tracks employee activity over the electronic network system. Therefore, for employers who allow non‑exempt employees to access the company’s electronic network remotely, a record probably exists showing how often and at what times an employee is accessing the company network. If requested in discovery, an employer may be required to turnover information showing the times a particular employee accessed the company’s electronic communication system. If an employee is working remotely from home at night, these records may show the log‑in and log‑off times for a particular non‑exempt employee. This record could be valuable to an employee in an off-the-clock work case and problematic for an employer.

Consider these questions:

  1. How accurate is the documentation showing the employee’s log‑in and log‑off times?
  2. Does the record necessarily correlate with the amount of compensable work time the employee was performing remotely?
  3. Was the employee performing compensable work or merely surfing the internet for personal reasons?
  4. Could the employee have logged on to the network and gone to dinner with his or her family without performing any compensable work?

These are just some of the issues that an employer faces in an off‑the‑clock work situation where documentation can be generated which may or may not be a reliable source of the amount of time that a non‑exempt employee actually spends performing compensable work time.

Other ways in which an employee’s time may be captured (but not necessarily reflective of time worked) include the following:

  • Remote access to the company’s electronic communication server;
  • Cell phone calls, e‑mails, or text messages which can be saved and/or retrieved from the mobile carrier;
  • Security gate badge swipes indicating that an employee is on the property (but not necessarily working);
  • Date and time stamps showing when an employee accessed, created, or modified a document in Word, Excel, or other similar programs;
  • Date and time stamps indicating when an employee accessed, created, or modified a document in an employer’s document management system;
  • GPS tracking devices on company vehicles; and
  • Copiers, fax machines, and other electronic devices in the workplace that may show a date and time in which a certain event occurred, especially if an employee has to input an individual pass code to access the electronic device.

The question of whether an employer will be liable for its non‑exempt employee’s off‑duty use of personal electronic devices will depend largely on the facts of each case. If an employee at issue checks his or her smartphone once or twice in the evening, it is unlikely that such time will be compensable. However, if the employee at issue is “glued” to his or her smartphone, answering e‑mails and calls at all hours of the day or night and responding to multiple e‑mails, it is likely that a court will find such time compensable. In those situations, employers need to recognize that there are likely discoverable documentation showing the time a non‑exempt employee  accessed  these electronic devices which have information flowing through the company’s servers and electronic communication network.

Employers need to be aware that this documentation exists and should take periodic steps to audit its non‑exempt employee’s use of its electronic communication systems during non‑working time. Such routine audits will allow employers to stay ahead of the curve with respect to potential off-the-clock work claims involving electronic communication devices.  These off-the-clock work claims are often difficult to defend because they are similar to harassment cases which often involve “he said she said” situations. This has always been the case with off-the-clock work claims. The non‑exempt employee will claim that he or she has been working outside of his or her normal working hours without proper compensation, and the manager or supervisor will either deny knowledge of such work or will state that he or she specifically informed the employee not to work outside his or her normal work schedule. With the advancement of technological communication devices, documentation may now exist to help support or defeat a claim of off-the-clock work. The reliability of that documentation will continue to be a challenge that employers did not have to consider previously.

Stay tuned for our new post in this series, in which we will discuss the use of GPS tracking devices.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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.