In this, the second post in our series on hot topics in the wage-and-hour arena, we focus on some of the off-the-clock pitfalls that face employers. Off-the-clock issues are particularly challenging given the new way that companies conduct business in the 21^st Century—via email, checking voice mails, and working remotely from somewhere other than the “office.”

Working outside of one’s scheduled work time without pay is generally known as working “off the clock.” An employer’s failure to pay employees for off-the-clock work is one of the more common violations of federal and state wage hour laws. Non-exempt employees’ use of PDAs, Blackberries, and online e-mail access from remote locations has increased worker productivity but has also substantially increased the risk of off-the-clock work violations.

The most commonly litigated off-the-clock work violations that result from available technology include the following:

1. Remote communications engaged in by non-exempt employees (Blackberry, cell phones, PDAs, or online e-mail access)
2. Remote work performed by non-exempt employees on laptops particularly where non-exempt employees are connecting remotely to the employer’s computer servers to perform compensable work time
3. Time that non-exempt employees spend at the workplace waiting for computers or other electronic systems to boot up or shut down
4. Being required to check or respond to voice mails or e-mails before or after an employee’s regularly-scheduled workday commences or ends
5. Uploading or downloading information to a company website or server
6. Performing required online training or completing required job-related paperwork online after hours

It is not unlawful for non-exempt employees to perform these activities outside their normally scheduled hours. What is unlawful is for non-exempt employees to perform these principal activities without the time being properly recorded and paid in accordance with minimum wage and overtime laws.

Employers may be tempted to rely on the so-called “de minimis rule” but they should use caution in doing so. To the extent that off-duty use of PDAs or other electronic devices is an “integral” part of the employee’s job and is required or permitted by the employer, it is likely compensable. The only exception to this rule is if the time is de minimis, or of such short duration and frequency as to be no more than a trifle.

There is no bright-line rule for what constitutes de minimis work. Rather, courts typically use a four-part test to determine if off-duty work is of so little consequence that it need not be compensated: (a) the amount of daily time spent on the additional activity, (b) the practical administrative difficulty of recording the additional time, (c) the aggregate amount of compensable time, and (d) the regularity of the additional work. The de minimis rule only applies where there are uncertain and indefinite periods of time involved of a few seconds or minutes, and where the failure to count such time is justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time that he or she is regularly required to spend on duties assigned to him or her.

Before fully embracing these brave new technological advances, employers should consider whether the efficiency and productivity improvements of issuing technology devices to non‑exempt employees outweigh the potential risk for off-the-work violations. If employers are going to allow non‑exempt employees to perform work remotely, employers need to have clear, written policies in place requiring non‑exempt employees to properly record all time worked.  Employers must also emphasize that working off the clock is against the law and is prohibited by the employer. Some employers are avoiding off-the-clock work by prohibiting non‑exempt employees from using these electronic devices at all during off-hours.

For those employers who allow non‑exempt employees to use these technology devices, it is not enough to simply have written policies in place; employers must also properly train their supervisors and managers. Supervisors and managers need to know their workforce and understand which non‑exempt employees are working remotely and to what extent. Supervisors and managers need to ensure that employees are properly recording all hours worked. Moreover, if the supervisor or manager does not want to pay for work time outside an employee’s normal work hours, the manager and supervisor need to adjust their work habits to ensure that they are not sending e-mails or leaving voice mails after hours for these employees, thus providing non‑exempt employees the opportunity to perform compensable work remotely outside their normal work hours. In fact, a September 2008 PEW Internet & American Life Project report determined that 50% of U.S. employees with access to business e‑mail check their work e‑mails on weekends away from the office, and 34% also do so while on vacation.

Here are some practical tips to try to minimize potential off-the-work claims:

• Implement a clear “off-the-clock” policy requiring employees to record all time worked regardless of when and where the work occurred.
• Train supervisors to never direct (or allow) an employee to work off the clock.
• If issuing Blackberries or remote access technology to non‑exempt employees, consider a requirement for them to sign a written statement acknowledging their requirement to report all time worked.
• Remind your non-exempt employees that you do not want or expect them to work outside their normal work hours without recording the time worked.
• If non-exempt employees can remotely access the company’s e-mail server after hours, consider periodically auditing the server access reports to determine if non-exempt employees who are accessing the company server after hours are properly recording their work time.

Staying ahead of creative FLSA plaintiff attorneys will help employers avoid the potential pitfalls of costly, time-consuming, off-the-clock work lawsuits.

Stay tuned for future posts on this important topic. Our next post—the third in our series—will focus on specific issues involving computers, equipment, and employer tools.

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.