“Everything in moderation,” I’m always saying. Exercise, TV, French fries. Well, I tend to moderate my exercise a tad more than my French fries, but I digress. What about technology? Social media? Those who know me know that I am a big believer in being able to disconnect sometimes, and that I often shout from the soapbox how we need to strike the appropriate balance personally and professionally when it comes to gluing our eyes and staple-gunning our hands to our phones and the social media displayed on them. For those of you out there who can’t (or won’t) disconnect yourself, the government may be stepping in.
Everyone’s aware of the wage and hour initiatives sweeping the federal, state and local landscapes, all of which seem designed to increase employee pay and strengthen employees’ work/life balance. New overtime rules, increased minimum wage, paid sick leave. Predictive scheduling. Next up on the agenda: legislating when employees can and cannot be required to engage in work e-mail.
Other countries are trying it. France, for example, just proposed a labor reform amendment that provides for companies to specify the hours when employees cannot send or receive e-mail. This employee disconnect push seems to stem from studies showing that there is far more and constant work-related stress than there used to be. What a radical concept. Needed a study for that? More importantly, is this an appropriate area for (more) government intervention into the workplace?
Back to the States. Last year at this time, the United States Department of Labor issued its 2015 Spring regulatory agenda, which advised the public that the DOL intended to publish a request for information in August 2015 to determine whether the creation of a new rule on employee use of portable electronic devices was necessary. Sort of the issuance of a rule to determine if a rule will be necessary. Nothing happened last summer. Now, the DOL has re-issued the same announcement as part of its 2016 Spring regulatory agenda, which expands the missive slightly:
“The Department is publishing a Request for Information to gather information about employees’ use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace, as well as information regarding “last minute” scheduling practices being utilized by some employers that are made possible in large part by employees’ use of these devices.”
The revised date for the issuance of the request for information is July 2016. We’ll see. I am keeping my expectations in moderation.
Employer Take Away: What should you as an employer take away from this development?
If the responses received by the DOL do prompt a new DOL rule/regulation, employers should expect guidance on the following, for good or bad:
- What the DOL considers to be compensable time when employees engage in activity using portable devices.
- How the DOL defines “de minimus” time in the context of the performance of work that does not need to be compensated.
- Whether new and more burdensome recordkeeping obligations will be imposed on employers, based on some recognition that traditional time sheets and punch cards may not work as well for after-hours, offsite activities.
- The extent to which employers should – or even must – have “e-mail curfews,” or are otherwise going to be regulated as to how often and under what specific circumstances employers can require after-hours, offsite work.
Until then, it might even be a good idea still to evaluate the nature and extent to which your company has employees utilizing portable devices or remote access for work-related reasons, and whether you are complying with the myriad of employment laws that apply to such use already.