Overtime Pay for Work Done Outside of the Office

By: LawInfo

Published: 08/2009

The advent of cellular phones and the internet have provided many people with the opportunity to work remotely. Employees no longer have to be at their desk all the time to successfully complete their job responsibilities. While there are some advantages to this, it appears that the honeymoon phase of this new technology era may be nearing a close.

It seems that with the flexibility of working remotely comes the responsibility to always be at work. While it may only take you two minutes to respond to a text or five minutes to take a work phone call on your personal time, this is an intrusion on your personal time that previous generations did not have to contend with. Many employers take it for granted that their employees will be readily available during most, if not all, of the employee’s waking hours but are employees being compensated for the actual work that they do once they leave the office? Should they be compensated?

Compensation is Required for Non-exempt Employees

Exempt employees, or employees who receive a salary rather than an hourly wage, are not entitled to overtime pay because the exempt employee and his or her employer have in essence agreed that compensation is based on performance rather than specific hours worked.

Everyone else is entitled to overtime pay for the actual work that they complete on behalf of their employer. Overtime pay is not something that can be waived by the employer and employee. It is something that employees are entitled to as a matter of law. An employer is responsible to compensate a nonexempt employee with overtime pay if the employer required or permitted the employee to work more than 40 hours in a seven day work week.

The language provided by the U.S. Department of Labor, “required or permitted” is important and employees should take note. An employer may not directly instruct you to participate in a conference call after hours or respond to every work related text message within 2 hours. However, if the employer provides you with the technology to do these things and is aware that you are doing them then the employer may still have an obligation to pay you overtime for the work that you are doing remotely.

It is clear that this era of constant communication is going to continue. It is, therefore, important for employers and employees to work out ways to handle the issue of overtime. The parties may agree, for example, that an employee will keep a careful record of all time worked remotely that is regularly submitted to the employer for payment or the employer may provide express and explicit instructions to the employee about what kind of overtime work will be authorized and what will not be compensated.

Both parties should also remember that the law does not distinguish between overtime work performed at the office and overtime work permitted remotely. Both types of overtime work must be compensated for non-exempt employees in the United States.