“I wish the U.S. Department of Labor could issue more workplace regulations before Inauguration Day,”
– said no employer anywhere ever.
Questions about the new overtime regulations aside, there might just be another DOL initiative that falls by the wayside before it even began.
You may remember the DOL celebrating Memorial Day back in 2015 by issuing its then-Spring regulatory agenda, which included RIN number 1235-AA12 entitled “Hours Worked Under the Fair Labor Standards Act.” That agenda item was not the publication of a new rule, but rather an announcement that the DOL intended to publish a request for information in August 2015 to determine whether the creation of a new rule would be appropriate and necessary. Specifically, the DOL described that agenda initiative as follows:
“The Department is seeking information from stakeholders on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work[.]”
To be fair, one of the biggest employer pitfalls that employment attorneys regularly discuss is the failure to pay for all hours worked by an employee when (1) the employee is performing work after hours and off premises using social media or some smartphone device, and (2) the employer does not necessarily know about that work because it is being performed after hours and off premises. This age of technology has, in many cases, created the 24/7 work day and the virtual “office” that is no longer constrained by the walls and ceilings of the company’s physical office building.
Take, for example, the supervisor who sends work-related e-mails to one of her subordinate employees, and then that employee decides to look at and respond to the e-mails from her stadium seat at halftime of a Dallas Cowboys football game on a Sunday night. Or, consider the vacationing employee having drinks in a sun-drenched Cancun palapa, who receives a call from his manager asking him to quickly promote a sale on his Facebook page. Is all or any of that “work” that must be recorded and compensated?
The DOL’s concern has been two-fold: First, making sure that employees are properly compensated for work performed. Second, and perhaps not as obvious, but gleaned more from other agency action, trying to reduce employer encroachment on employees’ personal time, sick leave and family time off. In other words, this initiative is part of others that attempt to regulate work/life balance issues. Some work-related assistance may be reasonable or even necessary during certain types of leave, though other requests may be more intrusive when the leave involves certain physical or mental conditions.
Since 2015, the DOL apparently has had bigger regulatory fish to fry, and never actually sent out its request for information. Yet, the initiative has been included in each of its regulatory agenda since. However, in its most recent semiannual regulatory agenda, the DOL just moved the initiative to a longer-term agenda, meaning that it’s not expected to be released before the end of this year. That also means: (1) it’s not likely to happen before the Trump Administration’s DOL takes office; and (2) it, therefore, may not happen ever (well, at least for the next 4 or 8 years).
Employer Take Away: What should you as an employer take away from this development?
Whether or not the government ultimately forces action on the issue, employers should still focus on technology and employee activity by also taking inventory of certain practices and policies before any further DOL action is taken. A few thoughts for consumption:
- Make sure your policies (and practices) regarding working time, overtime, and the recording of hours worked are effective, accurate, and updated to reflect today’s realities and the realities of your employees’ positions.
- It is not sufficient simply to have a written policy that admonishes after-hours and off-site work when it is nothing more than a “wink-wink” policy that is not implemented in practice by direct supervisors and managers. E-mail and technology curfews, and other policies and practices less formal, must be cultural and emanate from the company’s c-suite all the way down.
- While it is perfectly acceptable to implement policies addressing the boundaries of work time and the need for approval to work overtime, it is less wise to discipline violations of such policies through wage or salary deductions than through the normal channels of performance discipline, even up to and including the termination of employment.
- Develop a strategy and practice regarding the common practice of “working through lunch.” No one wants to be George Orwellian to an extreme in the workplace, yet well-intentioned practices can come back to haunt you if the waiver of a lunch break is prohibited in your jurisdiction, or if your employee comes back years later and argues that he or she was really working through lunch and was not compensated.
- Give serious thought to whether it makes sense to limit the number of employees (and positions) who have company-issued smartphones or can have access to the company’s e-mails and systems from outside of the office. Perhaps there is a benefit to giving such devices and access only to those truly exempt employees, for whom you have fewer recordkeeping obligations when it comes to hours worked. That also assumes the company has properly classified its exempt employees. Oh, how this all interconnects.