For many workers, time spent working doesn’t end when they leave the office. With the increased usage of smart phones, employers may be able to reach workers at all hours. Workers may feel reluctant to ignore a late night or weekend email from an employer, even though it arrives during non-working hours.
At what point are workers entitled to be compensated for this off hours communications?
As a general rule, the Fair Labor Standards Act (FLSA) requires that non-exempt workers be paid for all hours worked. While it’s not a violation of the FLSA to work “off the clock hours,” it may be unlawful if your employer fails to pay you for that time.
If you have questions about the FLSA or believe that your employer has failed to pay you all the compensation you deserve, it’s a good idea to consult with an experienced Atlanta wage and hour attorney right away.
Where your employer has violated the FLSA, you may be entitled to compensation including back wages and damages.
Although every situation is different, a few rules exist that you should keep in mind.
First, if you are a non-exempt employer, all of your time is compensable. Even though your employer may think a few minutes here or there responding to work emails or calls shouldn’t be compensated – they may be wrong. If your employer requires that you be accessible via smart phone, those minutes are likely compensable. Courts have come up with a 4-part test to help determine whether workers are entitled to pay for “off –duty” work. This test includes:
• Determine how much daily time is spent on the additional activity
• How hard is it to keep track of the additional time (“administrative
• What is the total “aggregate” amount of compensable time?
• How common are the requests for additional work?
In most circumstances, employers are required to count as hours worked
any time working, regardless of how small, of an employees fixed or regular
working time or practically ascertainable period of time that he or she
is regularly required to spend on duties assigned to him or her.
Remember If you believe that you have been denied overtime or that your employer has committed some other violation of the wage and hour laws, you don’t have to file an EEOC claim as you would in a typical discrimination case. Instead, you can hire a private attorney and file suit as soon as you discover the violation. Further, a lot of times if your employer has violated your rights chances are that it has violated the rights of other employees too. This means may you may be able to file a special type of FLSA class action, known as a collective action, which will help you bring the maximum pressure to bear on your employer to change its ways and to pay you all the compensation you are owed.
Also unlike the discrimination laws, the FLSA has a much longer statute of limitations-you have two years to file suit for most violations and three years if your employer’s violation of the law is willful. Your damages can include all back wages (which includes any unpaid overtime), plus an amount equal to your unpaid back wages, interest, attorneys’ fees, and court costs.
For more information or if you believe you have been denied compensation for all the your time spent working – including time spent working on your smart phone – contact the experienced Atlanta wage and hour attorneys at Buckley Bala Wilson Mew LLP, LLC for an immediate case evaluation.