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Natalie F. Hrubos
Associate
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“It’s the age” is what everyone says when I say I had 5 weddings to go to this year.  The count included two in Philadelphia where I live, two in Cape May where I’m from, and most recently, one in Cancun, Mexico where my cousin and her (now) husband said “I do.”

To prepare for the trip to Cancun, I did what I always do when I travel overseas.  I switched my iPhone into international mode, and I packed up a laptop and a smattering of work papers to take with me. The 3 hour and 47 minute flight from Philadelphia to Cancun seemed like the perfect time to get some work done.

Fortunately, if an employee’s properly classified as exempt under the FLSA, then for compensation purposes, it doesn’t matter that the employee’s checking emails while boarding a flight, or waiting to get called to the buffet during a wedding reception, or sitting on the beach with a cucumber mojito in one hand and an iPhone in the other.  That employee’s paycheck can be exactly the same as if he or she had left the iPhone at home.  Unfortunately, not every vacationing employee getting work emails on an iPhone is properly classified as exempt.

The FLSA is clear that work not requested but suffered or permitted is compensable work time. So, if a non-exempt employee checks emails poolside, for example, that employee may argue that the employer is required to provide compensation for that time (depending on a number of circumstances including whether the time spent is “de minimus”).  That’s true even if the employer didn’t ask (or want) the employee to check emails, as long as the employer knew or had reason to know what the employee was doing.

A pending FLSA collective action filed by a Chicago police sergeant against the City of Chicago illustrates the possible legal ramifications associated with employee use of smartphones for work outside the office.  In his suit, the police sergeant claims that the City of Chicago violated the FLSA by failing to compensate him and a putative class of roughly 200 police officers for time spent reading and responding to emails via city-issued BlackBerries outside of normal working hours.  A federal magistrate judge granted conditional certification of the class earlier this year.

The critical lesson for employers is it generally doesn’t matter where or how or when non-exempt employees work.  Employers must be tracking, recording and compensating them for all work time, even if it’s happening on a beach in Cancun.

About Natalie F. Hrubos
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Natalie F. Hrubos represents and counsels management clients in all aspects of labor and employment law. Her litigation experience ranges from single plaintiff employment discrimination cases to multi-state wage and hour class and collective actions. Ms. Hrubos also counsels and trains management on a wide range of employment law matters, including wage and hour compliance, personnel policies and procedures, and diversity and inclusion initiatives.
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Kevin E. Vance
Partner
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The home healthcare industry has become big business in South Florida, as our population ages. People want to stay in their homes – and out of assisted living facilities – longer, and thus more and more healthcare is home-based.

Home health workers have always been exempt from the overtime and minimum wage provisions of the Fair Labor Standards Act (“FLSA”). But, yesterday the U.S. Department of Labor (“DOL”) announced a rule that will change that. Labor unions supported this DOL action, while many in the healthcare business community opposed because of the added costs associated with the change.

Here’s the background information. The FLSA requires the payment of overtime and minimum wages to non-exempt employees who work in interstate commerce. In 1974, Congress amended the FLSA to include coverage for “domestic service” workers such as maids. But, that amendment specifically excluded employees who provide “companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” This language makes babysitters exempt from the FLSA and has, in recent years, been interpreted to make home health aides also exempt. That has been true for home health workers employed directly by the individuals or families they work for, as well as third-party home health providers.

But, now the DOL has announced that, effective January 1, 2015, “direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.” This new rule will not affect the FLSA status of aides who work directly for individuals/families. Those workers will remain exempt. But, those home health aides who work for third party agencies will now be entitled to the federal minimum wage, plus overtime.

About Kevin E. Vance
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Kevin E. Vance is board certified by the Florida Bar in labor and employment law. He focuses his practice on labor and employment litigation and other types of business litigation. Mr. Vance is AV® Preeminent™ Peer Review rated by Martindale-Hubbell.