An employer asked the DOL about this situation:

Employees are offered an optional training course on a computer application they use to do their work. Everyone is already trained on the basics and has enough skills to perform their duties. But the optional course provides advanced knowledge, which lets them work more efficiently.

The training includes online courses employees are expected to take at home on their own time. Most of the employees taking the course are nonexempt — do they need to be paid for what they do at home?

The DOL’s answer: Yes.

Time spent attending training doesn’t have to be paid if all of these criteria are met:

• the training occurs outside the employee’s normal working hours
• attendance is voluntary
• the information learned is not directly related to an employee’s job, and
• the employee doesn’t do any work during the session.

In this example, the training was directly related to how employees did their jobs — it helped them perform their work more easily — so the time had to be paid.

Popular tools such as Apple’s iPhone give employees the chance to check e-mail and do other work anytime they want. Sounds great to managers who encourage maximum productivity.

But not to HR pros charged with ensuring wage and hour law compliance. The FLSA requires nonexempt employees to be paid for all the time they spend working, except for “de minimis” activities.

The law doesn’t spell out what’s de minimis and what’s not, but lawyers warn that even a short period of reading and responding to e-mails might be enough to require payment.

That’s a big problem when there’s easy way for the company to know there’s even work being done.

One possible solution: a policy against nonexempt employees’ use of e-mail outside their scheduled hours.

Also, managers should be warned not to e-mail nonexempt staffers after hours. If employees see that their boss sends them messages at night, they may feel pressured to stay in contact at all times.

A recent Department of Labor (DOL) opinion letter tackled the question of how to track time when nonexempt employees take mandatory online training on their home computers. A company asked if that time can simply be added to employees’ time sheets.

The answer: Paper time sheets are fine. The Fair Labor Standards Act mentions that all time spent working must be paid for, including hours worked at home, as long as the employer “knows or has reason to believe” the work is being done.

But it doesn’t tell companies how that time needs to be tracked, as long as the information is collected and can be preserved. Therefore, the DOL said, old-fashioned paper time sheets still get a passing grade.

Read the opinion letter here.

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.