I Have To Pay My Employees For Doing What?
By S. Brent Wakefield
Your employees may be entitled to pay for getting dressed and getting texted. That’s right, under the Fair Labor Standards Act (FLSA), some employees may be entitled to pay for “donning and doffing” their work uniforms, and “working” on a BlackBerry or iPhone.
The FLSA requires employers to pay employees for all hours worked. The question then becomes, what is “work?” The U.S. Supreme Court has defined work as physical or mental exertion controlled or required by the employer and pursued primarily for the benefit of the employer’s business.
The U.S. Supreme Court held that a Tennessee battery plant’s employees were entitled to be paid for taking on and taking off their clothing and safety gear, as well as showering on plant premises. The Court found the activities were integral and indispensable to the worker’s principal purpose which was fraught with vital considerations of health and hygiene.
In 2010, the Little Rock Police Department faced a class action lawsuit alleging it failed to pay its police officers overtime for all hours worked in excess of forty hours per week – which included time putting on and taking off their uniforms at the beginning and ending of shifts. The U.S. District Court found that while the uniform itself was indispensable to the job, the officers were not required to dress/undress on the employer’s premises. Officers were given the option of where to change clothes; work or home. As such, this time was not compensable under the FLSA.
So if you require your employees to wear certain gear and you require that gear to be changed at work, it’s possible you may have to pay your employees to “don” and “doff” their uniforms. The fewer buttons, the better.
If getting dressed is considered “work,” then what about talking and/or e-mailing related to company business during “off hours” on a smartphone? With the advent of technology, we all expect to be in contact with one another more frequently and at a moment’s notice. In the business arena, smartphones offer employers and employees the ability to stay in touch during all hours of the day, and since the FLSA requires employers to pay employees for all hours worked, even those in addition to a prescribed schedule if the employer knows or has reason to know the employee is working, then yes, this time may be compensable.
In New York, a T-Mobile sales representative sued his employer claiming the company provided him with a Blackberry and required him to respond to work-related e-mails and texts at all hours of the day. The case settled in May 2010 for an undisclosed amount. (Many of these cases are brought as class-action lawsuits). In Wisconsin, an hourly maintenance employee alleged he was not paid for time he spent on a PDA which he was required to use during “off” hours. A Florida woman sued Verizon for time she was required to be “on-call” between 9 a.m. and 9 p.m. Her employer had issued her a BlackBerry with e-mail and texting capabilities. Lastly, a Chicago police officer sued the City of Chicago for time spent responding to e-mails, text messages and voicemails on his PDA issued to him by the police department. He claimed his supervisors expected him to respond immediately to work-related communications even during off-the-clock hours.
There are certainly pitfalls in this area of advancing technology as it relates to the FLSA. As an employer, either decide that you will or won’t require your employees to “work” from remote locations via smartphones or otherwise. If you require it, set up policies on security and safety (passwords and no texting while driving) and be prepared to pay your employees for this time.
Finally, the FLSA is not applicable to certain “exempt” categories of workers such as managers and executives. These folks are paid a salary and can work over 40 hours a week without the right to 1.5 times pay. However, wrongfully classifying a non-exempt employee as an exempt employee can lead to dire consequences. Courts do not care about the employee’s title; rather, they look to the nature of the work and if the FLSA applies to determine if the employee is entitled to pay for all hours “worked.
Brent Wakefield is a member of the Labor and Employment Practice Group at the Barber Law Firm. He can be reached at firstname.lastname@example.org.