The Hourly Employee and the Company Issued Device: Tips to Avoid the "Continuous Work Day" under the NLRA

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Smart phones, laptops, PDAs and cell phones. In today’s business world almost everyone has one or more of these devices.  More and more employers issue these devices to their employees to assist in productivity, allow more flex-time or alternative work arrangements and find they are a necessary component of doing business.  But aside from the obvious abusive employee usage, did you ever think they could end up costing the company more in wages?

Most employers know they must compensate their non-exempt, hourly employees for all hours on the job.  They further know that traditionally commuting from home to the job site and back is not compensable time.  But can the lines be blurred when the employer issues these employees company-issued devices?

In a recent case out of Federal court in New York, an employee argued that because he had a company issued device, which he used-to perform work functions- at home before and after reporting to his assigned job locations for the day.  The employer compensated the employee for the duties he reported completing at his home office, but was not paying him for the commute from the home office to the job locations.  The employee argued under the theory of the “continuous work day” that because he was performing essential duties of his job at home, that is when is work day started and ended, and as such his commute time was compensable too.

The court dismissed the employee’s case, pointing out that when the employee elected to do these duties was his own choice, the employer did not require he do them immediately before beginning or ending his commute.  This is distinguishable from an employer who might require an employee to phone in for a meeting, en route to the job site or location.

Employers are advised to make sure their company’s policies do not require employees to utilize their company issued devices or perform work activities “off site” at any particular time.  Likewise, from both a safety perspective and in an effort to avoid continuous work day arguments, company policies should address the use of such devices while driving.  Lastly, if an employer becomes aware of an employee working off site and not reporting their hours or time, address the issue immediately.