Academic journal article Journal of Corporation Law

Smartphones: Increasing Productivity, Creating Overtime Liability

Academic journal article Journal of Corporation Law

Smartphones: Increasing Productivity, Creating Overtime Liability

Article excerpt

  I. INTRODUCTION
 II. BACKGROUND
     A. Purpose and Enactment of the FLSA
     B. The Portal-to-Portal Act
     C. Coverage Under the FLSA
     D. White-Collar Exemption Under the FLSA
        1. Salary Test
        2. Duties Test
     E. Defining Work
     F. Overtime Provisions
     G. Damages and Remedies for Violations
III. ANALYSIS
     A. Voluntary Work
     B. Policies Against Overtime
        1. Knowledge of the Time Worked
        2. Employer Duty to Prevent Unwanted Work
        3. How Much Time Is Required?
     C. On-Call Time
     D. De Minimis Time
 IV. Recommendation
     A. Congress Should Amend and Clarify the FLSA
     B. The DOL Should Update Its Regulations
     C. Employers Should Be Proactive
  V. CONCLUSION

I. INTRODUCTION

Advancements in technology are blurring the line between work time and leisure time, creating what has been termed "weisure time." (1) Experts say this mixture of work and leisure causes more Americans to use technology to stay connected and work while away from the office, for example checking e-mails while attending a child's sporting event. (2) Society has recognized the problems this creates for employees and their families. (3) However, these advancements also create problems for employers because the Fair Labor Standards Act (FLSA) only defines compensation requirements for work time, not for "weisure time."

One piece of technology at the heart of this "weisure time" is the smartphone. Although there is no standard definition, the term smartphone typically refers to a mobile phone enhanced with computer technology, including e-mail, internet access, and the ability to create and edit documents. (4) Such a technological advance is enticing for both employers and employees. Employers view smartphones as a way to always be able to contact employees, to increase worker productivity, and in some situations to improve customer service by keeping employees accessible and able to respond to customer problems or concerns. (5) Employees also see advantages from the technology, finding it gives them flexibility by allowing them the freedom to get away from the office and still stay connected. (6) As workers move up the corporate ladder, the availability and flexibility offered by a smartphone often becomes essential--if not required--for the job. (7) However, as smartphones become increasingly affordable and more popular, more and more Americans--not just salaried corporate executives--are joining the smartphone trend. (8) While some employees have phones from their employer for business use, others are getting smartphones for their own personal use. When hourly employees check their work e-mails from personal smartphones, many wonder if such time is compensable. (9) Compensation issues like this become increasingly significant in a struggling economy. As employers are looking to cut costs--including labor costs--while still maintaining productivity, employees are competing with coworkers to retain their positions and are looking to receive adequate compensation for such work. (10) Additionally, former employees who have not found other work due to the high unemployment rates are more likely to bring claims now that they may not otherwise have brought. (11)

This Note examines the FLSA and its application to time employees spend using smartphones. Specifically, Part II examines the FLSA, its overtime coverage for certain employees, and the basic definitions laid out in the FLSA. Part III analyzes the varying applications of those definitions by courts regarding: voluntary overtime, what makes time compensable, on-call time, and de minimis time. Finally, Part IV explains the changes Congress and the Department of Labor need to make to clarify the act, and what employers can do in the meantime to protect themselves from overtime claims by employees using smartphones outside of work without the employer's permission.

II. …

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