DOL Seeks Information on Employee After Hour Usage of Smart Phones

The United States Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) announced that it will seek a request for information (“RFI”) from employers regarding hours logged by non-exempt employees outside of normal work hours on smart phones and other portable devices.[1]  Coupled with the DOL’s recent white-collar exemption changes (see related article), which will significantly increase the number of non-exempt employees, Employers should begin considering how they record non-exempt employee after hours cell phone usage for business purposes.

The DOL’s RFI and its Potential Impact

The DOL will issue the RFI in July or August 2016,[2] and employers will have several months to provide their comments,[3] to the RFI’s asking questions, such as: (1) how often employees work on smart phones or similar portable devices; (2) how employers capture and record such time; (3) whether employers consider this issue to be significant enough to warrant new regulations; and (4) employer practices regarding “last minute” scheduling.[4]  Employers are permitted to submit comments anonymously, which may help alleviate employer concerns that providing such information to the DOL may lead to a future DOL investigation.

The RFI likely signals the DOL’s intent to promulgate future rules on this subject,[5]  which may provide more guidance on the DOL’s definition of “de minimus” and compensable time when using smart phones or other portable devices to perform work after hours; impose new employer recordkeeping requirements; or lead to requiring employers to impose “email curfews.”[6]  The RFI may be the first step towards increased and burdensome regulations that, combined with the increased number of non-exempt employees due to the DOL’s white-collar exemption changes, would significantly impact employers throughout the country.

Employer Takeaways

Employers that issue cell phones to employees (or allow employees to use their own cell phones for after-hour work) or otherwise permit outside after-hour access to company systems and email should consider whether they will continue this policy after the anticipated DOL white-collar exemption rule change in December 2016.  Employers will need to balance their decision to possibly discontinue such policies and practices with the company’s need to truly respond to customers and other employees after work hours.  If the company decides to continue the practice, it must ensure that it has appropriate policies to educate employees on their responsibilities related to obtaining prior approval to work overtime—assuming that is the company policy—and recording and reporting their time worked after hours.  Employers who fail to account for and pay for after hours’ work for non-exempt employees may be subjected to a wage claim by employees for working off the clock.  Campbell Litigation will continue to track the WHD’s RFI and report back when further updates are available.

[1] Ben Penn, OT Rule Spinoff: DOL to Study Hours Logged Electronically, Bloomberg BNA Daily Labor Report (June 2, 2016).

[2] The DOL announced in 2015 that a similar request for information would be issued in Summer 2015, but that request was not issued due to the then-pending changes to the white-collar exemptions rule.  While this RFI may be delayed, it is anticipated that the WHD will issue the RFI on schedule.

[3] Michael C. Schmidt, DOL Agenda Targets Compensation For Portable Device Work, Law 360 (July 7, 2016) (available at http://www.law360.com/pennsylvania/articles/812865/dol-agenda-targets-compensation-for-portable-device-work) (last accessed July 21, 2016). 

[4] Id. see also Shannon Walpole, Smartphones – Dumb Problems For Employers. DOL Signaling Possible Rules Regarding Mobile Device Usage, Ferber Law (July 14, 2016) (available at http://danvillelaw.com/smartphones-dumb-problems-for-employers-dol-signaling-possible-rules-regarding-mobile-device-usage/) (last accessed July 21, 2016).

[5] See, e.g., Walpole, supra note 4 (likely that DOL will promulgate rules regarding issue); Schmidt, supra note 3. 

[6] Schmidt, supra note 3.