|
|
3220 M Street Sacramento, CA 95816 Telephone: (916) 492-6555 Facsimile: (916) 492-6556 ©2007 The Ison Law Group |
PDAs and the Time Clock
The personal digital assistant (or PDA) is among the latest electronic devices to make its way into the workplace. And along with it comes a new way for employers to run into an old problem – requiring off-the-clock work from misclassified workers, and the potential liability for unpaid wages and penalties as a result.
As we at the Ison Law Group have stressed many times to our clients, it is critical to classify your workers correctly, so that you pay them appropriately for time worked. Read on to see how you can safely integrate this new electronic device into your workforce, and avoid liability for back overtime and big penalties.
Who Gets Overtime?
Generally speaking, you must pay overtime for hours over eight worked in a day, to non-exempt employees – those whose job duties involve following specific procedures rather than exercising independent judgment. Federal and state laws specify these workers be paid for all time worked. In California, the rules for non-exempt pay are outlined in the Industrial Welfare Commission (IWC) Wage Orders, which are organized according to industry.
Overtime Exemptions
Exempt employees, on the other hand, regularly use their own discretion in their jobs, making decisions based on independent judgment rather than by following highly prescribed guidelines. For these workers, Federal and state law allows compensation for the job done (most often in the form of a salary), regardless of the amount of time it took to complete it.
In California, employees may be considered exempt from overtime rules if they fall into six categories, generally involving:
· Supervisory duties, including the authority to hire, discipline, and fire;
· Non-manual work directly related to management policy and general business operation;
· Licensed professionals in certain recognized professions such as medicine or law,
· Sales of either products or services for a commission;
· Non self-employed fine artists or musicians; or
· High level computer professionals.
In addition, all of the exemption categories are subject to minimum pay requirements of no less than two times the state minimum wage for full-time employment.
New Equipment Invites Old Problem
Personal digital assistants (PDAs) are handheld computers that were originally designed as personal organizers, but have become much more versatile. Many now multi-task as cell phones, calculators, calendars, e-mail devices, video and music recording and playback, word processing, and global positioning systems.
Many employers now provide PDAs to certain employees, or simply allow their use to perform employment-related activities. But this raises the question, whether employers must pay workers for work performed via PDA devices when the employee would otherwise be considered “off-the-clock.” And further, what if the employee is misclassified as exempt from overtime?
Federal Law
The Federal Fair Labor Standards Act (FLSA) considers the following factors when evaluating whether off-the-clock employment-related activity constitutes time worked:
· Does the employer require or control the time spent working?
· Does the employee have the freedom to leave the premises during that time?
· Is the employer aware of the activity?
· Is the activity primarily for the employer’s benefit?
· Is the employee free to engage in his or her own activities during the time spent working?
While the workers who use PDAs to stay connected to work off-hours are likely to meet one of the exempt classifications, it is increasingly likely that misclassified workers will also use them, exposing your company to liability for unpaid overtime.
If you are sued, the case will examine the degree to which you required and controlled the work when determining whether the time spent is compensable, regardless of the device used to perform it.
What You Should Do
While there has yet to be a court case involving work-related activity and PDAs, it may only be a matter of time before an employee using one after hours to answer e-mail or download a document claims he or she is entitled to overtime pay for the time over eight hours worked in that day.
To manage your liability, you should:
· Evaluate all job descriptions in your company, to see if you have any workers classified as exempt who should actually be receiving overtime pay.
· Develop a policy that governs the use of PDAs, both company- and employee-owned, that restricts their use by non-exempt workers outside the workday, and requires the employees to properly report the time worked so that they can be paid.
· Review your overtime policies, and make sure you follow them consistently.