Two business men on cell phones

Managing Hourly Employees in a Digital World

by Yvonne Nellums, PHR, SHRM-CP, on October 31, 2018
Today employees have the ability to stay wirelessly connected to work 24/7. Almost every employee has a smartphone or device to connect. While salaried exempt employees benefit from this flexibility, it is important to manage your nonexempt employees’ time while they are conducting work.

Employers have been in a quandary as technology advances and they need to manage their risk regarding “connecting” by hourly employees. Many of us are addicted to our phones, and we check our emails during off hours to ensure we are on top of things at work. A Deloitte study showed that 77% of people surveyed checked their email within an hour of going to bed and 86% of respondents checked their email within an hour of getting up.

The Department of Labor’s overtime regulatory requirements are clear on recording actual time worked for hourly employees. Employers are required to pay hourly employees for “all hours worked." It is important to note that the Department of Labor, in following the Fair Labor Standards Act (FLSA), states if employees are “suffer(ed) or permit(ted) to work,” then they need to be compensated unless the time is deemed de minimis. (Please note: This rule has been rejected under California law.) The “de minimis” rule applies only when there are uncertain and indefinite periods involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. Example: If you have an hourly employee checking emails during off-duty hours on a consistent basis and the total time for the week is approximately two hours resulting in 104 hours per year, this is not considered de minimis. I believe we are going to see more rulings on the de minimis rule and my advice is to take the most conservative approach and pay for any time worked.

What can an employer do to limit exposure to overtime claims from nonexempt employees performing unauthorized off-the-clock work? Here are some things to consider when establishing a policy regarding off-duty connections:

Develop a clear, comprehensive policy regarding time reporting - Clarify the policy surrounding use of electronic devices whether those tools are company owned or personal.

Assess employees and determine the functional duties of each role - Establish how critical an immediate response is for emails and/or text messages.

Clarify your policy – Determine what circumstances are appropriate for an immediate response.

Set specific parameters - Decide which employees may use these tools and for what purpose. For example, do not give employees access to emails unless there’s a business need.

Periodically monitor email traffic - Check for unauthorized use after regular business hours.

Train supervisors on the policy – Make certain that employees do not feel pressured to respond to supervisors during off hours.

Communicate your expectations – Communication is equally important as documentation of the policy.

Enforce the policy uniformly - If a plan is thoughtfully communicated to the employees and uniformly enforced, not only will there be clarity throughout the organization, but wage and hour concerns should be minimal.
Yvonne Nellums, PHR, SHRM-CP

Certified as a Professional in Human Resources (PHR) and Society of Human Resources – Certified Professional (SHRM-CP), Yvonne serves as Director of Human Resources for LandrumHR. She has over 34 years of experience of comprehensive human resources management. She is responsible for a team of certified HR professionals who deliver human resources expertise and training to our client customers. Her experience in the field has been acquired through focus on labor and employee relations, employment law compliance, talent acquisition, and conflict resolution. Yvonne is a Past President of the Greater Pensacola Society for Human Resources Management, past Legislative Director on the HR Florida State Council of SHRM, and served in various leadership roles for SHRM.

View more blogs by Yvonne Nellums, PHR, SHRM-CP