Client Bulletin #388


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It is no longer news that collective actions under the Fair Labor Standards Act are extremely popular with the plaintiffs’ employment bar. What is news, however, is the latest wave of FLSA collective actions brought by non-exempt employees who are “wired” – that is, those who use mobile phones, laptop computers, and personal digital assistants in their jobs.

FLSA collective actions alleging that employers have misclassified employees as exempt continue to be popular. So are claims by non-exempt employees alleging that they work before and after regularly scheduled shifts, or don and doff required uniforms without being paid for the time, or miss meal breaks for which employers automatically deduct from compensable time.

However, the new wave of litigation involves plaintiffs who have been properly classified as non-exempt and who are “wired.” The plaintiffs in these lawsuits claim that they perform substantial amounts of uncompensated, off-clock work through the use of electronic devices, which – so they say – effectively puts them at their employers’ disposal at all times.

This was not a problem in the past. Once, this technology was available only to exempt employees, who are not covered by the minimum wage and overtime laws. Now, virtually everyone has a cell phone, and laptops and PDAs are becoming increasingly commonplace for many non-exempt employees. Employers therefore need to give careful consideration to the wage and hour implications of putting such devices in the hands of non-exempt employees.

The FLSA has a very low threshold when it comes to defining compensable working time. The regulations state, “Work not requested, but suffered or permitted is work time.” The regulations impose an affirmative obligation on employers to effectively control their employees’ working time. This applies to work performed at the job site, as well as work that may be performed from home or other locations. Thus, when non-exempt employees have electronic devices that provide access to their work, employers must have the appropriate policies and procedures in place to manage “remote” work or to prohibit it.

Employers also need to be careful about commuting time. Although such time is normally non-compensable (there are exceptions), it can become compensable if the employee makes work-related calls from her cell phone while driving to work, or performs work at home either immediately before or immediately after the commute.

The plaintiffs’ bar is educated on these issues, and it is important that employers be, too. If you need assistance with a wage and hour audit, or with formulating “remote work” policies for your company, please contact any member of Constangy’s Wage and Hour Practice Group, or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit, or call toll free at 866-843-9555.


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