Finally, consider whether your practices require your employees to engage in any work-related activities while not clocked-in and determine if the time spent in such activities are compensable. Third, take steps to ensure that your managers and human resources personnel understand the implications of the policy and are fully engaged with its enforcement. Second, if you decide to provide non-exempt employees with smartphones and email or other electronic access, adopt a written policy that provides guidance about use of the devices and other access after-hours and also instructs non-exempt employees to record and report all time worked outside of normal hours. First, carefully evaluate whether it is necessary or beneficial to provide non-exempt employees with company-issued smartphones, laptops or after-hours email access. There are several steps that employers may consider to reduce the risk of off-the-clock claims by non-exempt employees. Significantly, the federal court found that Apple’s searches had no relationship to the plaintiffs’ job responsibilities they were peripheral activities relating to a theft policy. A United States District Court Judge recently dismissed the class action, finding that employees were not subject to the control of their employer because they were free to choose not to bring bags to work, and thereby avoid Apple’s restrictions during exit searches. Another common question is whether time spent by employees coming and going from the workplace when they are not clocked-in compensable? Such a claim was filed against Apple by a class of employees claiming that they should have been paid while waiting for and undergoing mandatory bag checks, designed to prevent theft from Apple stores. For instance, is time spent responding to an after-hours email from a customer or a manager compensable? While the answer to this question is not fully developed under the law, it may largely depend on whether the time spent doing so is de minimus and required by the employer. This legal framework raises a variety of questions. However, employees cannot perform work in secret, deliberately preventing their employers from obtaining knowledge of the unauthorized work, and then obtain recovery. Compensation for such unauthorized work is mandatory, although employees may be disciplined for violating an applicable company policy, such as a requirement that employees receive approval from their manager for any overtime work. This generally means that managers cannot simply look the other way when they know or should know that employees are performing unreported work, even if the work is not authorized. “Suffered or permitted” to work includes work that an employer knew or should have known about. But what about work performed by non-exempt employees that is not reported, such as time spent responding to an email on their smartphone after hours or in security checks when coming or going from the workplace?Ĭalifornia’s wage and hour laws require employees to be compensated for any hours they are “subject to the control of an employer” and “suffered or permitted” to work, regardless of whether the employees have been required to do so. Financial Institutions & Creditors' RightsĪs part of our continuing Advisory series on wage and hour issues, this week’s Advisory focuses on compensation for work that occurs “off-the-clock.” Employers generally know that they must pay non-exempt employees for all work hours that are reported on their timecards.Discrimination, Harassment, and Abusive Conduct.
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