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BusinessColumnistsJamie Herzlich

New rule means checking email from home could trigger OT

In today’s mobile environment more employees are doing work outside of the traditional workplace, often after hours.

According to a survey last year by Staples Advantage, about a quarter of employees regularly work after the standard workday is done.

Now, with millions more salaried employees becoming eligible for overtime pay under a new federal overtime rule that takes effect Dec. 1, employers should put policies in place that address mobile device use outside of the workplace.

“Mobile devices maximize the likelihood that an employer is going to have to pay overtime,” says Nancy Flynn, executive director of the ePolicy Institute consulting firm in Ohio and author of “The ePolicy Toolkit” (Wiley; $150). Particularly since there will be more employees eligible for overtime pay who were previously exempt, she adds.

The new Labor Department rule raises the threshold under which most salaried employees must be paid overtime from $23,660 a year to $47,476 a year.

So employers must accurately identify which employees would be eligible for overtime pay, advises Flynn, and “make sure no one’s misclassified.”

And if you don’t want to pay overtime, don’t issue smartphones to non-exempt employees; don’t allow supervisors or managers to assign overtime work after hours to those employees; and require employees to get written authorization from management for overtime work before it’s conducted off site, advises Flynn.

Also look at your time-keeping policies to make sure there’s a provision requiring hourly employees to report all time worked, including off-hour, off-site work, and an effective way to “clock in,” says Shannon Walpole, of counsel at Ferber Law in San Ramon, California. She has more tips at danvillelaw.com.

Walpole says the Labor Department announced this spring an intent to request information from employers regarding the use of electronic devices by nonexempt employees outside the workplace. That request was expected this summer, but to her knowledge it hasn’t been made yet.

Spokesman Jason Surbey said regarding the purpose of the information gathering, “The department understands that digital technologies are changing the way many people work and is looking at how those technologies are affecting the workplace and assessing what they mean for American workers.”

The DOL doesn’t specifically address the use of mobile devices in regards to overtime and non-exempt employees, explains Scott Green, a partner in the labor group at Rivkin Radler in Uniondale. “It’s definitely a gray area,” he says, and not on the radar of a lot of people yet. “There’s so much low-hanging fruit in the wage-hour sphere in terms of liability, nobody has really looked here yet.”

Christine Ippolito, principal at Compass Workforce Solutions, a Deer Park HR consulting firm, says she’s been advising clients on the new overtime rules and how to address company emails and communications on personal smartphones and tablets after hours.

Employees need to know what employer expectations are, and that if a manager sends out an email to a non-exempt employee after hours, he or she is not required to respond if the company isn’t willing to pay overtime, she notes.

Companies need to stay on top of this “because the DOL is paying attention,” says Ippolito.

There are tools to help, such as an app at dol.gov that tracks hours worked and determine wages owed .

If employees are violating policy regarding mobile device use and overtime, pay them and then discipline them, suggests Green.

Unchecked, it can be, he says, “a potential source of liability for employers.”

Fast Fact:

4.2 million

Number of currently exempt employees who will be eligible for overtime pay later this year.

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