A question I’m often asked is whether employers need to pay their employees for checking and responding to e-mail during what would normally be the employee’s personal time. The answer is yes, and the answer applies to any form of e-communication, such as texting and instant messaging, and also to phone calls.
While this may seem unfair to employers, particularly those who have policies prohibiting unapproved “overtime” work, the reality is that technological tools, both company-issued and personal, have increased employee accessibility, especially when off site or after hours. This increased accessibility in turn increases the possibility that employees are performing off-the-clock work that should be paid. And, work that arguably should be paid, but isn’t, creates an avenue for employees to assert unpaid wage claims against their employers.
How can this be? Through five magic words: “suffer or permit to work.”
“Suffer or permit to work” means that if an employer requires or allows employees to work, the time spent is generally hours worked, and must be paid. The result is that time spent doing work not requested by the employer, but still allowed, is generally hours worked, if the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done.
For properly exempt employees (that is, those exempt from receiving overtime pay), after-hours and off-site e-mail usage is of no concern to an employer from a wage-and-hour perspective, since exempt employees are paid to complete their job duties regardless of the number of hours it takes them. (The operative word here is “properly.” If an employee is improperly classified as exempt from overtime, wage-and-hour concerns abound.)
The big concern with after-hours and off-site e-mail usage exists with non-exempt employees. Under federal law, non-exempt employees are usually hourly (sometimes salaried) employees who must be paid at time-and-one-half their regular rate of pay for all hours worked beyond 40 per week.
Problems occur when employees do not properly document incremental time spent engaging in work-related communications during personal time. This creates undocumented hours worked and overtime liability, even in the face of otherwise clear employer policies against working off-the-clock without compensation.
How should employers position themselves to reduce the risk of such claims?
Develop or Otherwise Revise Your Timekeeping Policy
It’s not enough anymore to simply have a policy that prohibits employees from working extra hours without permission.
Develop a policy that prohibits off-the-clock work and that leaves no doubt to employees that they must record all time worked. Be clear with employees with what this means. For example, make clear in the policy that an employee may not do any work before clocking in, and if he does, he must contact management to override the start time so that he will be paid for all time worked. Similarly, make clear in the policy that an employee may not do any work after clocking out, and if he does, management must be contacted to override the stop time so that he will be paid for all time worked. Also be clear with employees that work includes e-mails and phone calls.
Train supervisors that they cannot direct non-exempt employees to perform off-the-clock work. This includes inadvertent encouragement. For example, where overtime is not permitted, supervisors should be telling employees that “no one is permitted to work any extra hours or overtime.” This is very different from telling employees that “the company cannot pay for or afford overtime,” which employees often hear as “work the extra hours, but do not record your time.” Any supervisor that even suggests that employees work off the clock should be disciplined appropriately.
Similarly, supervisors who work different or longer hours than their reports should schedule e-mails for delivery during the employee’s normal working hours. If this is not practical, the supervisor should specify in the e-mail’s subject line that the employee should not respond until he returns to work.
Also train supervisors that they are obligated to report to HR or management any potential off-the-clock work by employees, like the employee in the example above who was instructed not to respond until he returns to work, but ignored his supervisor’s directive. This will allow HR or management to talk with the employee to determine if he is owed pay for hours worked.
Keep in mind that if any employee exhibits a pattern of working extra hours without documenting them, or working extra hours without permission, typically, the best response is to pay the employee for the hours worked, but to also discipline the employee for violating company policy.
Bolster Your Timekeeping System
Consider bolstering your timekeeping system to include questions that ask employees if they have performed off-the-clock work, so that you can follow up with the employees and then pay them for any time worked but not recorded.
These questions can be included on most modern time-keeping systems, or even in basic paper format, at the beginning or end of each shift. For example, at the beginning of every shift, employees can be asked before they clock in if they have done any work since they clocked out from their last shift. Employers who opt to ask these questions must have a procedure in place for HR or management to follow up with and speak with employees about off-the-clock work.
The benefit of asking these questions is that if an employee responds negatively, any subsequent allegations that he performed off-the-clock work that he was not paid for will be inconsistent with his prior answers. Those inconsistencies will weigh heavily against the employee’s credibility should he later sue for unpaid, off-the-clock work.
Set boundaries for any kind of remote work, including e-mails and telephone calls. This includes establishing clear rules about whether and when employees may work remotely.
Some employers prohibit non-exempt employees from using smart phones or cell phones for business, but that may not be practical for all employers. If there are times that non-exempt employees need to use these devices for business, set boundaries as to when they may do so and provide them with appropriate guidance on how to record their time to ensure proper payment of wages.