Truth be told, I’m breaking a promise—I told myself I would never add to the wildly un-entertaining doldrums of legal material. No offense to my legal brethren, but digestible, riveting blogs are not our strong suit. But, as an attorney, HR leader, and business trendwatcher, this is a legal topic that needs to be addressed. Here’s to taking the fundamentals and making them worth your read.
In 1938, the US government enacted the Fair Labor Standards Act (FLSA) into law. In the wake of economic recession, the FLSA established basic employment guidelines like minimum wage, no child labor, and overtime. Specifically, it stipulated that non-exempt employees (eg. low level staff, line workers, etc.) be paid time and a half for all hours worked over 40 in a given week—something very much still in practice today. Fully compensating employees is important and necessary not just because it’s the law, but also because it’s simply the right thing to do.
However, the FLSA was written for a world landscape vastly different than ours. In 1938, Nazi Germany was on the rise, scientists were just discovering nuclear fission, Glenn Cunningham was still trying to break the 4-minute mile, and minimum hourly wage was set to 25 cents. Times have changed. We need to re-calibrate our legal definitions to fit our evolving, technological world—specifically one trending toward mobile employment platforms.
Some time spent outside the continuous workday is too trivial to merit consideration—a quick phone call, an email, a brief conversation. Courts typically deem this time “de minimis” and generally determine it based on three factors: (1) the practical administrative difficulty of recording time; (2) the size of the aggregate claim; and (3) whether the employees performed the work on a regular basis. There is no clear cut bright-line test for de minimis time, but courts have considered anything less than ten minutes to fall in that category.
In the current rise of mobile technology, businesses will naturally raise questions around what constitutes compensable time for non-exempt employees. For example, should a low-level marketing assistant be paid overtime for receiving and responding to a push notification message from a manager outside their normal working hours? Employment law can be perplexing and precarious to those unfamiliar with it, but doesn’t have to be.
Here are a couple easy ways to safeguard against running afoul of the FLSA:
- Ensure that employees know what’s required and expected of them when it comes to communication outside of normal work hours. If an employee is suddenly expected to respond to emails or notifications at 8:00 at night, but those expectations were never set up front, it could become an issue.
- When non-exempt employees are expected to communicate digitally, make sure all messages and activities are short and sweet and kept well under the 10 minute de minimis work time limit.
My dream is that the Department of Labor adapts official regulations to account for the newly evolved, mobile-first world. But until then, these safeguards will ensure that you can reap the vast benefits of mobile technology while simultaneously protecting and caring for your employees.