“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.