Tuesday, May 26, 2015

Putting together the puzzle on off-duty emails and overtime

Employers, I can see the writing on the wall, and it’s not looking good for your continued reliance on your non-exempt employees using their smartphones off-the-clock.

In the past few days, this issue has picked up a ton of momentum. First, the Wall Street Journal ran an article entitled, “Can You Sue the Boss for Making You Answer Late-Night Email?” Then, the Wage & Hour Litigation Blog reported that the Department of Labor’s Wage & Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours.” Finally, the ABA Journal reminded us that the same Wage & Hour Division will likely raise the salary floor for exemption eligibility from $23,600 a year to $50,000 a year. This significant bump in the salary test will remove a large chunk of your employees from many of the FLSA’s key overtime exemptions.

What does all this mean? It means that you need to take a long, hard, look at which of your employees you are requiring to connect when they are “off-the-clock.” If you are requiring your non-exempt employees to read and respond to emails after their work day “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not at a 1.5 overtime premium).

I’m pretty certain that the Department of Labor consider this time compensable, but I’m not so sure. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

Nevertheless, if you want to eliminate the risk over this issue, I suggest you consider a couple of steps:

  1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt versus non-exempt.
  2. Consider implementing an email curfew for your non-exempt employees (which has its own pros and cons).

This issue is not going away any time soon, and illustrates the difficulty the law has keeping up with the stunning pace of technology.

For more on this important issue, I recommend Just how nervous should companies be about FLSA lawsuits over employee smartphone use? (Hint: very) via Eric Meyer’s Employer Handbook Blog.

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