Technology’s made it easier for employees to work anytime, anywhere. And it may also make companies more likely to get sued for FLSA violations.

With exempt employees, catching up on work on a home computer or responding to e-mails with a BlackBerry is no big deal.

But as connectivity increases, nonexempts are more and more likely to do the same. And experts say that’ll result in a lot of lawsuits for unpaid overtime.

Most at risk are companies that give PDAs, phones and other devices to nonexempt employees, since that basically encourages them to work extra hours. But as more people buy those devices on their own and use them for work, that puts all employers at risk if the time isn’t being tracked.

Even if it’s prohibited

It’s dangerous territory, since employees don’t always tell their supervisors they’re working at home. But that doesn’t mean companies can’t be held liable. Take this example:

An administrative assistant often takes time at night to read and respond to her e-mail. She never records the time and has never told her boss that she does it.

But he regularly gets e-mails from her that are time-stamped during non-work hours. That might be enough to put the supervisor on notice that she’s doing extra work and is owed overtime.

‘De minimis’ work?

One possible defense for employers is the FLSA’s “de minimis” exception. The law says employees don’t need to be paid when they do work for “a few seconds or minutes” at a time.

In other words, if a nonexempt employee takes a couple minutes to check e-mail over the weekend, that time doesn’t need to be counted toward overtime pay. But there’s no set rule saying what’s de minimis and what isn’t, and courts have found that blocks of work as short as ten minutes have to be paid.

What to do

So far, the issue hasn’t been tested in court, but law experts warn it’s only a matter of time.

In addition to making sure any and all time worked is properly recorded, here’s how companies can avoid getting hit with those claims:

• Update policies – You have to pay overtime even if you have a policy against working extra hours. But giving people rules about when they shouldn’t work is the best way to avoid those sticky situations.
• Educate managers - If supervisors don’t understand the overtime regs, they may expect and encourage nonexempt employees to check e-mail and do other work at home.
• Limit communication – If managers call or e-mail employees after hours, they may feel encouraged to work overtime. That communication should be limited to critical situations.
• Withhold devices - If your company issues BlackBerries, laptops and other devices to employees, it might be a good idea to only give them to exempt workers.

An employee became president of the company’s union. Soon after that, he learned the employer had installed a GPS tracking device in his company vehicle.

The company claims it was because he wasn’t properly recording the time he spent working. But he says it was to punish him for his union activity. No other employees were being tracked, so he’s arguing he was singled out.

Consistency is key

The issue here doesn’t seem to be whether or not a company is allowed to keep close tabs on employee whereabouts – in fact, courts have found it OK when company’s install tracking devices on their own cars and other company property. Some state and local privacy laws may prohibit such tracking, but there’s nothing on the federal books against it.

The question is whether or not the tracking was done in retaliation against the man’s protected activity. And given the timing, it’s likely going to be an uphill battle for the employer. We’ll keep you posted as it develops.