The growing ease of technology has made it dangerously easy for the 24/7 workplace to create liability for employers. The following is a reminder of the dangers that lurk in our 24/7 working world. 
1. Off-the-clock work
Both federal laws and the laws of many states require that employers pay for work performed. For nonexempt employees, this can quickly add up if significant time worked isn’t correctly reflected on an employee’s time card or another time-accounting system, such as a “virtual” time clock software system.
A common risk for employers occurs when nonexempt employees log in to the company system from home to check their e-mail. By doing so, they are working, and many employers don’t have a mechanism in place to ensure that such working time has been properly accounted and paid for. Even more dangerous in this 24/7 world is nonexempt employees who are allowed to download work e-mails to their smartphones so they can check and respond to e-mail throughout the evening and the next morning while they are “clocked out” and away from the office.
2. Unpaid overtime
The Fair Labor Standards Act (FLSA) requires employers to pay overtime of 11/2 times an employee’s regular rate of pay for hours worked in excess of 40 hours in a workweek. The FLSA does not require that overtime be paid for hours worked in excess of 8 hours per day or on weekends or holidays. However, many states provide workers greater overtime protections than those offered by the FLSA.
Overtime is often implicated in the 24/7 workplace when a nonexempt employee actually records work performed after she leaves the workplace, which often results in working over eight hours a day and/or 40 in a workweek. Overtime pay is still implicated and owed regardless of whether it is accounted for on a time card or in an accounting system.
3. Meal and rest break violations
The FLSA does not require rest or meal periods, except as amended under the Affordable Care Act (ACA) for nursing mothers, but it does set standards for when work breaks, including meal periods, rest periods, and sleeping time, must be counted as paid work time. Many states, however, require paid and/or unpaid meal and/or rest breaks. Failure to comply with the mandatory meal and rest period requirements can expose you to liability. In a 24/7 workplace, violations are likely to happen when, for example, an employee works extra time that would trigger another rest or meal period.
4. Reimbursements
In some states, employees are entitled to be reimbursed for business use of personal items if those items are necessary for performing their duties. In the 24/7 workplace, this requirement is implicated when an employee uses his personal smartphone or another device to check and respond to e-mails. Employers should reimburse employees for business use of their personal electronic devices. Indeed, this law’s real teeth are in the attorneys’ fees provision, which states that employees are entitled to attorneys’ fees incurred in their attempts to enforce their rights under the law.
5. Waiting time penalties
In some states, employees are entitled to be paid immediately when an employer terminates the employment relationship or soon after. In the 24/7 workplace, if an employee has worked off the clock and hasn’t been paid for it, then wages owed and unpaid upon termination could trigger waiting time penalty liability. Further, if the off-the-clock work exceeds eight hours in a single day, the employee must be paid at the appropriate overtime rate. Otherwise, it will be deemed wages still due and owed, again triggering a waiting time penalty payment.
6. Workers’ compensation claims
Since the 24/7 workplace has blurred the lines of stopping and starting work as well as what really is and isn’t considered “working,” the historical workplace has changed as it relates to when and where “workplace” injuries occur. Would an employee who trips and falls in a mall while walking and responding to an e-mail have a viable work-related injury claim? Would it make a difference if he tripped while jumping out of bed to pick up a call after hours from his boss? These are just some of the potential work-related injury issues that are created by our 24/7 working world.
7. Always working but never working
Since the new world order is a 24/7 workplace, there’s a sense from employees that they’re always working, and thus, the potential for burning out is high. This may manifest itself with less-than-energetic employees. From an employer’s perspective, some employees may not be as efficient or hardworking as they used to be, so a little more work now and then is only fair. In the employer’s view, the employee was paid for a full day but didn’t give a full day’s work, and it begrudgingly pays extra for the work the employee did after leaving the workplace.
Bottom line
Employers should be mindful of the implications of the brave new 24/7 world in which we work. If nonexempt employees are working off the clock, make it “on the clock” and pay them for it. If the extra hours implicate overtime, pay it at the proper daily and weekly overtime rates. If you have told nonexempt employees not to work once they leave the office and they continue to do so, pay them for the work and then discipline them for failing to follow the rules. 
Michelle Lee Flores is an attorney with Cozen O’Connor, practicing in the firm’s Los Angeles, California, office. She may be contacted at mflores@cozen.com.