Most people who earn a salary between $23,660 and $47,476 who are currently ineligible for overtime because their income is considered too high will now be eligible for it. They will become “nonexempt”—and the implications go way beyond payroll.
One of the unanticipated consequences of the DOL’s new regulation is that anyone who is used to taking their work home with them (e.g., answering emails at home after work from their phone or laptop) will now have to be paid for that “off the clock” time. Being nonexempt means every minute worked, including off-the-clock work, has to be paid, even if it was unauthorized.
In a recent interview with TSheets, employment law attorney Maria O. Hart warns that this is a potential risk area for companies that allow their employees to use their own devices for work, and that it could even trigger a new wave of FLSA lawsuits.
“I think part of the upward trend we’re seeing is a result of technology allowing employees to do more work off site and off the clock,” she says. “As telecommuting becomes more common and after-hours email or texting becomes more prevalent, you complicate the way time is tracked and accounted for.”
Daniel Abrahams, partner at Washington D.C. law firm Brown Rudnick, agrees with Maria’s analysis.
“In the modern age, the workplace increasingly intrudes on our personal lives. Employers fail to understand the difference between exempt and nonexempt employees, and they get themselves in trouble mostly out of a lack of sophistication in assuming they can call nonexempt workers or ask them to check their email or respond to texts outside of normal working hours. That’s a significant emerging area of liability and difficulty.”
With another 4 million employees entering this “emerging area of liability,” this is a very good time to review your company’s policies and procedures. Do you know which employees are covered by the FLSA (both now and after December 1)? Is it easy for them to track their time no matter where they’re working? Do you have a clear policy on overtime? Does your “bring your own device” (BYOD) policy cover exempt and nonexempt employees?
Talk to HR, talk to your attorney, and make sure you’re covered—because time is running out. The December 1 deadline is approaching fast.
To find out more about the new overtime regulations and what they could mean for BYOD, check out the 7 Deadly Sins of FLSA Compliance.