When I was a younger attorney, I worked for a firm where the first name on the letterhead had strange work hours. He would stay at home in the morning with his kids and generally arrive at the office around 11. Often, he would exasperatedly wonder where everyone was during the noon hour. He was also the one who would work later into the evening. Needless to say, he expected his employees to be available day and night. I recall him telephoning one of his partners as she was on her way to the hospital (she was in labor) asking her about a particular case!
There were several instances where this partner would expect responses to his inquiries late at night or early in the morning. While attorneys are usually exempt employees, there is now a question about whether answering e-mails, phone calls, texts, etc. after work hours could lead to a claim for overtime.
With the rise of company-issued smartphones and the expectations that one is always within reach of that smartphone, employees are working at all hours by answering those after hours e-mails, calls, or texts from the boss or the client. This has given rise to a slew of lawsuits regarding overtime pay. These lawsuits are fairly new and have not set any precedents regarding the line between answering one e-mail and "overtime."
Adding to this wave of lawsuits is the expected updated rules from the Labor Department raising the salary floor. By raising the salary floor, there will be significantly more employees eligible for overtime pay pursuant to the Fair Labor Standards Act.
If you are an employer, what do you do? First, be sure to implement (and stick to) a policy regarding expectations for use of smartphones or other devices during non-work hours. The policy should include reporting of time worked outside of the normal work hours for that employee. Second, make sure to pay the appropriate overtime pay for work performed remotely above and beyond the normal work hours. Third, if you have an expectation that employees work around the clock (e.g. requiring them to provide customers with their mobile number or e-mails in order to ask you questions), then you may want to adjust the work schedule of that employee to include a set amount of time (one hour?) as part of the work day. Fourth, you may want to consider capping the amount of time spent working remotely during off hours. Finally, you may want to implement a "no working on the smartphone after hours" policy.
Keep in mind, if the time spent by the employee working remotely is not significant (e.g. answering one or two e-mails every so often), it is unlikely that will qualify for overtime pay. It may be wise to get an idea from the non-exempt employees who work via their smartphones (especially company-issued devices) how much time they spend using those devices for work-related matters when not "on the clock." That way, you can fashion an appropriate policy to handle such matters. Generally, it is wiser to take care of these types of matters on the front end because any successful lawsuit for overtime pay includes liability for the plaintiff's attorneys fees, as well as penalties.