Email and overtime: the Brazilian connection

Saturday can be a very slow news day locally so a teaser for the evening news about a new law that requires the payment of overtime to employees who use it outside of the work place caught my attention.  I was wondering how I could have missed something on that topic.  Of course, it pulled me in, and I watched the newscast.  As it turns out, the story was about a new law in Brazil ( a fitting topic for a slow news day.)

Over the years, I have found that stories like that get the viewer thinking about their individual situations.  What about me?  Am I entitled to overtime here?  The story highlights an issue for employers:  what is or is not required of employees with respect to activities like checking email after hours or working at lunch.

There is a real risk for employers when employees decide to work on their own schedule.  The Department of Labor regulations refer to such work as work not requested "but suffered or permitted" and classifies such work as work time.  It is not enough for an employer to have a rule regulating or prohibiting such work.  The regulations state that having a rule is not enough; an employer must enforce it.

Enforcing such a rule is easier said than done; especially when it comes to personal email and smart devices.  Use of company issued phones or smart devices is easier to monitor since the company will get the bills.  With the widespread use of personal equipment, monitoring is more difficult.

First of all, an employer needs to have a policy covering personal cell or smart phone used for company business.  Most employers recognize that employees are entitled to reimbursement for such use provided the copies of the bills are submitted with the business numbers highlighted.  Employees should be advised that the employer will do audits on call and an abuse will be considered dishonesty.  As is true with similar policies, the employer should have the employees sign an acknowledgement of receipt and understanding of the policy.

Secondly, the employer needs to follow through with its monitoring and enforcement.  Failure to do so will cause the employer its own kind of "suffering" with the Department of Labor.