Technology frees many people from their desks. This mobility, however, can complicate issues about overtime for nonexempt employees. New York employers should make sure that their overtime policies specifically address work done after hours by email, text or telephone conversation. A company should describe whether the activity is permitted, and, if so, how an employee should send a request for overtime pay.
The Fair Labor Standards Act maintains that work done remotely from mobile electronic devices qualifies for overtime pay. An employer that has knowledge of this overtime work by accepting or recognizing an assignment completed and transmitted after hours could have liability for the payment of overtime.
Knowledge of overtime activities plays a crucial role A case decided by a federal appeals court affirmed the position of the employer, a large metropolitan police department. In the case, officers from an organized crime investigation unit sued the city for unpaid overtime work completed on BlackBerry devices. The officers claimed that the employer had an unwritten policy against asking for overtime for BlackBerry work. The appeals court determined that the police department lacked the means to compare the completion of work on BlackBerrys to information on time sheets, which meant that the employer had no documented knowledge of the overtime activities. Furthermore, the written overtime policy did not prohibit online work and did not ask employees to specify the type of work performed on an overtime request.
An employer grappling with wage and hour laws could seek clarification from an attorney. Legal advice could help an employer decide how to respond to a dispute about pay. To defend a client from an employee's claim, an attorney could assemble evidence, like official policies and payroll records, to support the employer's position in court.