The fact that the majority of workers carry a cell phone 24/7means that employers have the ability to reach workers at any time on any day. The problem is that some employers actually expect workers to respond at any time on any day (or night) as well. So, what about that random 1am phone call from the manager on duty? Does that count towards overtime hours?
24/7 access to their employee workforce is going to come at a cost to employers as they will need to pay for the time or risk potential class litigation regarding unpaid wages. Starbucks Corp. and Evolution Fresh (a Starbucks subsidiary) recently settled an overtime suit that delivery drivers brought against the company claiming that they were not compensated for company calls they took outside of their scheduled shifts. Another major corporation, ABM Industries, is facing similar problems. It looks like ABM will probably be settling (to the tune of $5.4M) to resolve claims that they failed to reimburse cleaners for data and cell phone costs. ABM employees claim they were required to use their cell phones for clocking in, clocking out, and other work necessities and job duties.
So, when do employers need to pay workers for after hour calls? What about after-hours emails? How is “compensable time” determined?
Determining compensable time depends on which law is at play: the federal Fair Labor Standards Act or an equivalent state law. Once this is determined, the question becomes whether or not the employees are covered by the law. If the employee is covered by the law, is their work considered “de minimis” or too infrequent or insignificant to require payment?
This type of overtime case depends heavily on the facts and details of the specific case. How the details are presented can be crucial and the court’s decision has been known to fall on both ends of the spectrum. Nearly everyone has a cell phone and this makes it easy to reach an employee with a phone call, text message or email during a break or after they are off work and off the clock. Some employees feel pressured to respond to employer contacts even though they aren’t clocked in – others may be required by company policy or expectations to respond.
If you have questions about why you aren’t paid overtime or if you need to talk about what constitutes off the clock work, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.