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Under the Fair Labor Standards Act, employers in Tennessee are required to compensate non-exempt employees for any and all hours of overtime. That includes time spent on calls, texting or emailing after work hours from mobile devices. Tennessee employers may be liable for failure to pay overtime if they have constructive or actual knowledge of the overtime worked.

Even in a situation where the employer has a written policy meant to prevent employees from working overtime on calls, texts or emails, the employer may still be held liable for failure to pay overtime. In a situation where the employer knowingly benefits from after-hours work, the employer will generally be found to have constructive knowledge that the employee was working overtime. The employer will thus generally be required to pay the employee regardless of whether the employee submits a request for overtime payment.

A case from the 7th Circuit addressed the issue. The City of Chicago was sued by several police officers for failing to pay overtime pursuant to the FLSA. The city had an overtime reporting system in place, but the plaintiffs argued that there was a second, unwritten, overtime policy that discouraged officers from claiming overtime payments for work done on mobile devices.

The plaintiffs in that case did not ask for overtime compensation and the court held that the city had neither actual nor constructive knowledge of the overtime work. Tennessee employees who have concerns about a potential violation of wage and hour laws may want to meet with a lawyer in order to see what recourse might be available to them.