The Fair Labor Standards Act (“FLSA”) requires that non-exempt employees (1) receive at least the minimum wage for all hours worked and (2) be paid one and one-half times their regular rate of pay for all hours worked in excess of forty hours in a given workweek. A “workday” generally means the period beginning with the time the employee commences his principal activity and the time on that day in which the employee ceases his principal activity. Although these concepts sound simple and easy to apply, many employers are increasingly finding themselves the target of wage and hour lawsuits brought by current and former employees for “off-the-clock” time.

Scenario: To increase efficiency and communication with a nonexempt service technician, the company provided him with a BlackBerry smartphone and/or remote access to the company’s e-mail server from his home computer and personal iPhone. The employee’s normal workday is 9:00 a.m. to 5:00 p.m. However, as a conscientious employee, the service technician regularly wakes up early each morning and checks his e-mail and phone messages for any pressing customer issues. He often responds to several e-mails before showering. At night, he responds to his supervisor’s request for a status on his assigned accounts.

Although the company may not require this type of commitment, the company would still be required to pay this employee for all of his “phone, BlackBerry and e-mail” time, unless such time is de minimis. If an employer requires or permits a non-exempt employee to work before or after his assigned shift, the time is considered compensable and must be paid accordingly. Unfortunately, the company may not have records of the hours actually worked or claimed by the employee. Seeking his rightful compensation, the employee will testify to the times he worked and a review of the company's e-mail records and phone records will also help to establish that the employee did perform the work during off-the-clock time. A court will credit the testimony of the employee who actually worked the hours rather than the testimony of a supervisor who could only deny that the employee did the work.

Since, under the FLSA, the employee is entitled to his back wages, liquidated damages and attorneys' fees, a former employee's suit is almost cost-free. Therefore, to avoid this scenario, all companies need to have and enforce a policy regarding off-the-clock time. In addition, all companies should require recordkeeping by the employee and approval, in writing, by supervisors. The cost of litigating just one wage and hour case is worth the time spent reviewing current policies and implementing new practices to protect the company. Members of the firm's Employment, Labor and Benefits Practice Group are available to share with you winning strategies.