Of course, you want workers to be as productive as possible. But handing out smartphones to non-exempt employees may be much more of a headache — and a cash drain — than it’s worth.
Here’s why: Employees checking smartphones after hours represent a hidden overtime liability, and there are many gray areas between what’s compensable time — and must be paid — and what are so-called “de minimis” activities.
Here are some examples of what you have to pay for — and what you don’t — in pre- and post-shift tasks under the Portal-to-Portal Act.
Pre-shift ‘de minimis’
- Passively receiving mapping instructions, and
- Prioritizing jobs and routes for daily assignments.
- Booting up laptops and opening software used for work
- Actively calling in for and reviewing the day’s assignments
- Checking and responding to email
- Actively mapping out daily travel routes, and
- Loading computers, printers, docking stations, digital cameras and other supplies into cars.
Post-shift ‘de minimis’
- Simply carrying a smartphone to be on call after hours, and
- Spending aggregate amount of time on work activity that amounts to only a few seconds or minutes.
- Uploading data to a company server with more than one attempt being necessary to complete the task, and
- Being on-call so restrictively that employees can’t effectively use time for their own purposes.
Based on a presentation by labor lawyer Rich Paul of the San Diego law firm of Paul, Plevin, Sullivan and Connaughton, LLP, who spoke at the 2012 LEAP symposium in Las Vegas.