For today’s connected workforce, the ability to do work anytime, anywhere is invaluable. Yet allowing non-exempt employees to perform work at home or other remote locations is fraught with legal risk. In fact, whenever non-exempt employees use employer-provided devices out of the office, it engenders thorny questions such as when the compensable workday began, and whether even commuting time might potentially be compensable. Employee “freedom” wrought by technology has created new legal challenges for employers in the form of wage-and-hour risks on multiple fronts. The rising tide of wage-and-hour litigation, coupled with the rapid growth of an increasingly technological and interconnected workforce, means that remote work off-the-clock claims may well be the next frontier in wage-and-hour litigation.
Shifting Legal and Regulatory Landscape
In deciding that telecommuting may be a reasonable accommodation under the Americans with Disabilities Act (ADA), the U.S. Court of Appeals for the Sixth Circuit in Equal Employment Opportunity Commission v. Ford Motor, No. 12-2484 (6th Cir. Apr. 22, 2014), recently noted that “the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her duties.” However, the dispersion where work can be performed does not alleviate the obligation of employers under the Fair Labor Standards Act (FLSA) and its state counterparts to pay for time “suffered or permitted” to work, including time-and-a half for hours worked over 40 in a workweek. Indeed, technology can make it far more challenging for employers to navigate the minefield of wage-and-hour compliance.
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