It used to be that tracking employees' hours was as simple as checking to see whether they were sitting at their desks or what time they punched the time clock for that day. That’s not true anymore.

Today, the line between our lives at and outside work has blurred. People these days check their e-mail at home and on the go, they update Web sites from coffee shops, and, of course, they always have that cell phone handy. All this connectedness has helped make us more productive, but it also could lead to legal trouble for employers, said Daniel J. Bretz, labor and employment law attorney for Clark Hill PLC in Detroit.

“People are predicting that it’s just a matter of time before class-action attorneys get together a group of plaintiffs who will sue their employer, potentially, for overtime for time they spent working at home, checking their e-mail, doing work off their laptops.,” Bretz said. “The problem is monitoring the time – and understanding how much time was actually spent. And while some employees are exempt from overtime laws, the vast majority of employees are covered by overtime laws – which means for any time over 40 hours, they are entitled to time and a half.”

Bretz said this phenomenon, which layers are calling “Blackberry overtime,” could become a major expense – and a major headache – for employers if they don’t take the steps necessary to establish good policies now.

Getting a handle on this new kind of overtime, Bretz said, starts with making sure a company’s employees are properly classified so that managers know who is and who is not subject to overtime rules, and then setting up rules that cover what can and can’t be done at home.

This is no simple task, Bretz said. It is already hard to determine which employees are entitled to overtime pay. And with the advent of new technology, such issues as when the workday begins and ends become murkier and more difficult to track. Labor laws written in the 1930s simply did not anticipate the number and kinds of positions that exist in the modern workplace or the number of ways people can now access their work.

“A lot of employers have been sued for misclassifying employees as exempt who should truly be non-exempt and who should be being paid overtime,” Bretz said.

How should employers protect themselves? Bretz says this is not an area that lends itself to guesswork. Employers need to do their homework – and they need expert advice.

“The Department of Labor has published regulations, which are accessible online…,” Bretz said. “But to really understand the nuances of that, you’re going to need an experienced labor attorney who has done the research.”

Bretz said the Department of Labor estimates that more than 70 percent of employers already are violating the federal Fair Labor Standards Act.

“While it is one of the granddaddies – it’s one of the oldest laws on the books – it’s also one of the most violated,” Bretz said. He said there are “a lot of myths and urban legends about how employees should be classified… It’s really best to do the research … before you get yourself in the bull’s eye of a class-action lawsuit.”

In addition, he said, employers need to have explicit policies in place that cover unauthorized e-mail and the use of electronic devices outside the office. But more than that, they need to enforce and monitor those policies.

Bretz said such policies could cause some tension with employees who often want the flexibility to check e-mail and otherwise work from home.

“But I think the key is to understand where people are in that 40-hour week and how much time they potentially they could spend doing e-mails.” Bretz said.

If the amount of time involved is small – a few minutes in the morning before leaving the house, for example – that would likely not be cause problems. If employees spend hours answering and sending messages at home, that could be expose the employer to liability, if the time is not accounted for.

When in doubt, Bretz said, it’s better to get advice. In the long run, it could be a lot less expensive than spending money to defend your company against a lawsuit.

Clark Hill PLC is a full service, Midwest law firm that is deep enough to handle the most complex matters, specialized enough to give you the right tool for the right job, and small enough to care about client service. With dozens of practice specialties and offices in Detroit, Birmingham, Grand Rapids and Lansing, Michigan and Chicago, Illinois, the firm’s 170 attorneys proudly represent a diverse group of clients ranging from individuals to Fortune 500 companies. For more information, visit www.ClarkHill.com.


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