The advent of remote connectivity has fundamentally changed the landscape of the American workplace and increased the potential wage-and-hour risks for employers. Modern technology, such as smartphones and virtual private networks (VPNs), provides many workers with the flexibility to conduct business from anywhere and at any time. A recent study by the Pew Research Center found that 45 percent of American adults own a smartphone, giving them access to email and the Internet at their fingertips on a 24/7 basis. The constant connectivity of today’s American workforce could signal the end of the 9-to-5 work day as we know it and correspondingly could create the potential for enormous overtime pay liability for employers.
While a connected workforce certainly could result in a more productive and focused workforce, it also may become more costly. For many employers, allowing employees to remain connected to their work email during non-working hours could create significant legal risks when those employees are non-exempt workers under the federal Fair Labor Standards Act. The FLSA, like many state wage-and-hour laws, requires employers to pay all non-exempt employees at least the minimum wage for all hours worked. If a non-exempt employee works more than 40 hours in a given work week, the FLSA requires that the employer pay that employee an overtime rate of one-and-a-half times his or her regular hourly rate for all hours worked in excess of 40 for that work week.
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