E-mailing at home: The latest legal trap?
August 26, 2009 by Sam NarisiPosted in: In this week's e-newsletter, Latest News & Views, Regulations & Compliance
Thanks to new technology, many employees can get their work done anytime and anywhere. That sounds great to managers — but it could get the company sued.
When bosses encourage or require nonexempt employees to read e-mail and do other work off the clock — and it goes unpaid — that will likely lead to a costly court battle.
Take this recent lawsuit:
Last month, three sales associates filed a suit against T-Mobile USA for back wages and unpaid overtime. They claim they’re owed pay for time spent responding to e-mails after work hours.
The employees were paid hourly and not exempt from overtime pay. But they were given company-issued smartphones and regularly received e-mails and text messages from customers and supervisors. According to company policy, they had to respond to them, whether or not they were on the clock.
When they reported those hours, management told them they wouldn’t be paid for the time and that they should expect to respond to messages as part of the company’s “standard business practices.”
Do the employees have a case?
The biggest strike against T-Mobile is that the employees were allegedly required to respond to messages in a timely manner. However, the Fair Labor Standards Act (FLSA) says all work and overtime by nonexempts needs to be paid for even when it’s voluntary — and even when extra is against company policy.
The law does say “de minimis” work (defined as work taking only “a few seconds or minutes”) can be unpaid. That means, for example, that an employee could quickly read and respond to some e-mail without any trouble.
But the definition of “de minimis” is murky — some courts have ruled that work taking as little as ten minutes needs to be paid.
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Tags: e-mail, FLSA, overtime, smartphone
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August 24th, 2009 at 10:24 am
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August 28th, 2009 at 7:35 am
We are a non-profit organization and we have Case Managers who are non-exempted; however, part of some Case Managers’ job responsibilities is that they be on call during off-hours and weekends, available for consultation on an as needed basis. Therefore, from what I just read regarding “e-mailing at home” regardless if it is voluntary or non-voluntary a non-exempt employee must be paid for those hours even if it is part of their job responsibilities.
August 28th, 2009 at 9:00 am
I would never expect a non-exempt employee to work off the clock. If we’re talking about taking 2 minutes of their time and it’s something that doesn’t happen very often, that would be one thing. But if we’re talking about 5 minutes here, 10 minutes there, night after night, they should certainly be paid. It could add up quickly to be quite a bit of time during a work week. I guess I’m a little surprised that a company like T-Mobile USA would think otherwise. You can’t make company policies that violate state or federal law…
November 11th, 2009 at 10:16 am
I’m no HR expert, but from my training I was always told that Hourly works who are required to be waiting for “on call” duty after hrs and on weekends, need to be paid for that time. You may want to look into that issue further
November 11th, 2009 at 11:07 am
It may take a few seconds to reply to an email, but it may take hours to think about the right response, and, a work email is an intrusion on private time and can disrupt the whole day, especially if it causes aggravation.
Both exempt and non exempt employees should be compensated in one way or another. For example, I am exempt and I am given more flexibility in my daily hours. Furthermore, no employer has the right to harass employees off hours, at any level of management. I bet I could prove this to be unconstitutional, and I’m not an attorney.