Publix Lawsuit Highlights Risks Mobile Communications Can Present and Lessons for Retailers

As workplaces increasingly rely on the use of cellphones and other communication tools both during and outside the workday, employers face increased risks of wage-hour litigation. For example, three former Publix assistant managers recently brought a collective action against the grocery store chain alleging violations of the Fair Labor Standards Act (FLSA), which is the federal law governing employee compensation and hours worked. Specifically, the claimants alleged that Publix assistant managers worked off-the-clock without pay because they were required to respond to telephone calls and text messages during unpaid lunch breaks and while not at work.

Mobile Communications Introduce Risk for Retailers

The wage-hour claims filed against Publix serve as a reminder to retailers that “hours worked” by employees doesn't refer only to time spent on duty at the store. Cellphones are an important communication tool between management and employees, but calls and text messages can easily lead to after-hours, off-the-clock work that presents a risk of wage-hour claims by employees. That's especially true for retail management that must communicate with employees working different hours and shifts. Are retailers required to compensate employees for spending just a minute or two reading and/or responding to an email or text message while off duty? The answer often depends on the frequency of the emails and texts.

In addition to pre- and post-shift cellphone communications, the Publix lawsuit highlights unpaid meal breaks as another common wage-hour pitfall. The FLSA generally doesn't require employers to compensate employees for meal breaks of 30 minutes or more as long as the employee is completely relieved of all duties during the break. If a meal break is interrupted, however, what was once non-compensable time can become compensable. For example, an employee who has clocked out to eat lunch and then ends up communicating with their manager and co-workers about work matters via call or text has worked off-the-clock, and the entire break is thus compensable regardless of how long the employee spent on the call or text.

Takeaways for Retailers

The use of cellphones has become commonplace in the workplace. As a result, compensable tasks have started to bleed over into what was once clearly defined off-duty time. Employers must be aware that cellphones increase efficiency, but they also present significant risks of wage-hour claims.

In order to minimize the risk of wage-hour claims, retailers should consider updating employee handbook policies to include rules prohibiting off-duty email or text communications and providing reporting avenues for employees to report any off-duty work. Management should be educated and trained on what constitutes off-the-clock work and that even something seemingly as minor as a text message conversation or single phone call could lead to wage-hour litigation.

Managers should understand that encouraging employees to work during this time is prohibited and will result in disciplinary action. Hourly employees should similarly be made aware that such work is prohibited, but encouraged to report any off-the-clock work so they may be properly compensated for the time.

Ultimately, employers must be cognizant of the potential for off-the-clock work in their workplaces and audit their timekeeping practices to ensure they're properly accounting for all compensable working time.

H. Carlton Hilson is a partner at Burr & Forman, LLP. He represents employers in a wide range of workplace issues, including litigation in state and federal courts and advising on matters involving employee leave, hiring, discipline, wage and hour, workplace safety, and other policies and procedures.