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Non-exempt employees must be paid overtime when they work more than 40 hours during the workweek under the provisions of the Fair Labor Standards Act ("FLSA"). But what about the time non-exempt employees spend checking, typing, or responding to work-related text messages or emails before they arrive at the workplace, after they leave the workplace, outside of the office at lunch, on weekends, or on vacation?
Time spent by non-exempt employees checking, sending or responding to work related text messages or emails constitutes "time worked". Employers who fail to account for this time may be subject to significant overtime compensation claims. For example, T-Mobile received a class-action lawsuit from employees claiming that they were required to respond to numerous work emails at all hours of the day and night. AT&T was subject to a similar suit, and the property management firm CB Richard Ellis was sued by a maintenance man alleging that he was forced to work after hours without compensation for time spent on his Blackberry. This potential litigation could be very risky for employers, as time spent by employees on cell phones and other hand-held devices can add up quickly, and an employer may find itself trying to defend a lawsuit in which an employee claims to have worked several hours of overtime, but the employers' records do not reflect the actual amount of overtime worked.
Employers can help minimize their risk of overtime claims or related litigation by establishing policies that prohibit both exempt and non-exempt employees from texting or emailing their non-exempt co-workers outside their normal workweek schedule unless expressly authorized to do so. This policy should also require accounting for time spent by non-exempt employees checking, typing, or responding to work related text messages and emails outside their normal workweek schedule. Employers should, accordingly, exercise caution in issuing of cell phones, laptops or wireless devices to non-exempt employees.
Technology's Impact on Wage and Hour Laws (Heather D. Johnson, Employment Newsletter, February 2010)
February 23, 2010Non-exempt employees must be paid overtime when they work more than 40 hours during the workweek under the provisions of the Fair Labor Standards Act ("FLSA"). But what about the time non-exempt employees spend checking, typing, or responding to work-related text messages or emails before they arrive at the workplace, after they leave the workplace, outside of the office at lunch, on weekends, or on vacation?
Time spent by non-exempt employees checking, sending or responding to work related text messages or emails constitutes "time worked". Employers who fail to account for this time may be subject to significant overtime compensation claims. For example, T-Mobile received a class-action lawsuit from employees claiming that they were required to respond to numerous work emails at all hours of the day and night. AT&T was subject to a similar suit, and the property management firm CB Richard Ellis was sued by a maintenance man alleging that he was forced to work after hours without compensation for time spent on his Blackberry. This potential litigation could be very risky for employers, as time spent by employees on cell phones and other hand-held devices can add up quickly, and an employer may find itself trying to defend a lawsuit in which an employee claims to have worked several hours of overtime, but the employers' records do not reflect the actual amount of overtime worked.
Employers can help minimize their risk of overtime claims or related litigation by establishing policies that prohibit both exempt and non-exempt employees from texting or emailing their non-exempt co-workers outside their normal workweek schedule unless expressly authorized to do so. This policy should also require accounting for time spent by non-exempt employees checking, typing, or responding to work related text messages and emails outside their normal workweek schedule. Employers should, accordingly, exercise caution in issuing of cell phones, laptops or wireless devices to non-exempt employees.