Over the past few years, EmployNews has reported on growing legal concerns over employee use of mobile electronic communications devices away from work. If the employee is not exempt from the Fair Labor Standards Act's overtime provisions, time spent checking e-mails, or downloading documents on a home computer or smartphone may be considered compensable working time.

Last week, the Fifth Circuit Court of Appeals became the latest federal appellate circuit to address the issue of incidental electronic communication use outside of working hours. In Chambers v. Sears Roebuck and Co., a group of Sears in-home appliance service technicians sued their employer, claiming entitlement to unpaid wages and overtime. The technicians participated in a Sears work program that allowed them to travel directly to service appointments, and to home from the last appointment of the day without reporting to a central work location. Before beginning the work day, and after returning home, the technicians were required to plug in an electronic device that sent and received information concerning the day's work.

The technicians contended that the time spent on such electronic devices should be considered compensable working time. They also claimed that because they were required to work before leaving and after arriving home, their unpaid commuting time to the first and from the last job of the day should also be compensable.

The Fifth Circuit disagreed, affirming summary judgment for Sears. In its opinion, the court relied on expert testimony from Sears indicating that the time spent exchanging electronic information was only several seconds to minutes per day. Following a similar case last year from the Ninth Circuit, the court concluded that this de minimus time spent working outside of normal hours was not compensable under the FLSA. Using the devices before and after work did not convert the commute to compensable working time, because the technicians were given the flexibility by Sears to exchange information at a time convenient to them.

Sears prevailed in large part because it carefully devised its home work program to meet FLSA working time standards. Employers with employees who are using electronic communications in the absence of clear procedures spelling out what is and what is not considered to be working time run the risk of FLSA claims for unpaid wages and overtime.