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Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

By Mark Soycher

CBIA human resources experts

Q: A former employee has appealed a decision from the Unemployment Compensation Department denying her unemployment benefits, but our company will not be able to attend the Referee’s Hearing. What happens in this case?

A: First, notify the Appeals Division immediately to request a postponement or other arrangement. The telephone number of the Appeals Division office is printed at the top of the Notice of Hearing. Postponements are granted only for very good reasons.

If one of the parties fails to attend the hearing, a number of things can happen. If the appealing party fails to attend, the appeal likely will be dismissed and the department’s decision denying her benefits will stand. The referee can also decide to proceed with the hearing, and his or her decision will be based on the testimony of those present and the record. Or the referee can reschedule if there is good cause to do so.

If the appealing party attends but the non-appealing party does not, the referee can decide to proceed or to reschedule. If you do not attend the hearing, the referee’s decision could be based solely on your former employee’s testimony. So, unless a postponement is granted, it’s crucial that someone from your company attend.

Q: We generally observe the “big six” as scheduled holidays: New Year’s, Memorial Day, July 4, Labor Day, Thanksgiving, and Christmas: but sometimes may need to have a few employees work those days. Are we required to pay them overtime?

A: There’s no requirement to pay employees overtime when they work on a holiday unless the holiday hours result in the employee’s working more than 40 hours in that payroll week. But many employers do pay employees time-and-a-half: plus the day’s holiday pay: when they work on a scheduled holiday. Although not required to do so, some employers also count paid holiday time off as hours worked when they compute overtime for a week in which a holiday falls.

Q: Many of our nonexempt employees have smart phones or tablet computers, which they regularly use for work purposes while away from our facility during off-hours. Am I required to pay them for that time?

A: Ah, summertime, and the livin’ is easy, except in today’s 24/7 wired world, when many of us feel compelled to respond immediately to any work-related matter, even while on vacation.

Whether time spent by nonexempt employees is “working time” for which they must be paid has increasingly bedeviled management, as state and federal law has generally failed to keep pace with changing technology.

One constant in the law, however, has been the principle that if an employer knows or has reason to believe that an employee is performing work away from the job site (for example, while at home or on vacation), the time must be counted as hours worked, and wages must be paid to the employee.

From the regulators’ perspective, management has the authority to control its workforce and cannot accept the benefits of employee work without paying for it. Business owners or managers must take steps to ensure that work is not performed if they don’t want it to be performed. Simply telling employees not to work away from the job site and ignoring a different reality is not sufficient. Consequently, if a company institutes a no-work-at-home rule, management must advise employees of the rule and ensure compliance, even if that means taking disciplinary action.

Federal wage and hour regulations do, however, contain some language that seems to recognize typical use of contemporary communications technology.

In stipulating what time must be recorded as working time, the regulations specify that “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis.”

Therefore, it is unlikely that you would have to pay an employee for the minute or two it takes to check email while away from the workplace. But, where that occurs regularly and leads to brief or not-so-brief periods of time spent answering texts or interrupting family time to speak with a customer or manager, it cannot be ignored as unpaid “voluntary” work without risking significant enforcement consequences for unpaid work hours. Managers should listen to their own oft-stated caveats to employees regarding improper online activity: There is an electronic record, so beware!

For more information on pay practices, see CBIA’s Benefits Survey Report, 12th edition, which gives an overview of benefits currently offered by member companies. Purchase a copy online or call 860.244.1900.