With the ubiquity of remote work during the pandemic and thereafter, it is important to evaluate whether clients’ technology policies are strong enough to avoid pitfalls that could create significant liability and headaches. Often, technology policies are an afterthought for employers and are not necessarily addressed in employment handbooks. These policies take back seats to the all-too-familiar EEO, anti-discrimination, and anti-harassment, including the consequences of failing to have them. But technology policies, too, should be a top priority for employers. 

Technology has made it easier for us to stay connected with each other. Fortunately or unfortunately, depending on your perspective, this includes our employers, bosses, colleagues, customers and clients. Nearly everyone has a smart device that enables them to receive email, including work email, 24 hours a day, seven days a week. The ability to contact employees anytime can create problems under state and federal law governing hours worked and overtime. Legally speaking, this ability to work outside regularly scheduled work hours is not an issue for exempt salaried employees who do this “off-the-clock” work. However, many small and medium-sized employers are not aware that for nonexempt employees, answering emails and taking calls outside their scheduled work hours could entitle them to additional pay. The reason their employees take on additional work is immaterial under wage and hour laws. If employees are required to perform additional work, that time must be compensated. And if that additional work causes employees to reach overtime thresholds, they must be compensated with overtime pay. According to the Department of Labor, in fiscal year 2022, there were nearly 6,000 overtime violations.

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