This month’s expert is
Christopher Olmsted, a partner in the
Diego
Should nonexempt employees be paid for after hours time spent
reviewing business-related emails on their BlackBerries, smartphones, and other
personal digital assistants (PDAs)? The question has probably not occurred to
most employers—not yet, anyway. But wage and hour class actions have been built
on lesser issues.
With increasing frequency, employers are distributing PDAs to
employees. Moreover, gadget-oriented employees acquire PDAs on their own and
then use them for business as well as personal reasons. The employer’s IT department
may even cooperate by allowing employees to connect to the company’s email
server. Social norms also play a role in the increasing after-hours use of these
electronic devices. Late phone calls and meetings may be seen as an intrusion
on employees’ personal time, but few see sending an after-hours email as an etiquette
violation. Add to that the seemingly irresistible impulse driving some people
to constantly check emails on their PDAs. The use of some of these devices has been
jokingly compared to crack cocaine addiction.
Is It Hours Worked?
The general rule under both
and federal law is that nonexempt employees must be paid for all hours worked.
Does reading or responding to work-related emails after hours fit the
definition of hours worked? The
and federal legislatures, agencies, and courts have yet to decide, as
technology has raced ahead of the law. Nevertheless, general definitions lead
some legal experts to answer “yes.”
In
the Wage Orders include an expansive definition of the term “hours worked.” It
means “the time during which an employee is subject to the control of an
employer, and includes all the time the employee is suffered or permitted to
work, whether or not required to do so.”
Federal law defines hours worked similarly. The U.S. Department of
Labor’s online “elaws” guidelines summarize the Fair Labor Standards Act
(FLSA): “The FLSA defines the term ‘employ’ to include the 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. Thus, time
spent doing work not requested by the employer, but still allowed, is generally
hours worked, since 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.”
These general definitions lead to the following observations:
First, checking emails, even after hours, is probably “work.” The employee is
devoting time, thought, and thumb-power to company communications. Furthermore,
neither the state nor federal definitions depend on whether the work is
performed before, during, or after regular work hours. Second, the time spent
on emails may be compensable even if the employer does not specifically ask, or
expect, the employee to do the work. Merely knowingly allowing the employee to
check emails may be sufficient.
‘Time spent doing work not requested by the employer, but still allowed, is generally hours worked, since 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’
Note, too, that FLSA regulations place the onus on management to
control when work is done—or not done. “It is the duty of the management to
exercise its control and see that the work is not performed if it does not want
it to be performed,” the regulations state. “It cannot sit back and accept the
benefits without compensating for them. The mere promulgation of a rule against
such work is not enough. Management has the power to enforce the rule and must
make every effort to do so.”
By merely distributing PDAs to employees without controlling
after-hours use, the employer may be seen as allowing employees to check emails
off the clock. As the FLSA regulations suggest, merely having a rule against checking
emails after hours may not be sufficient.
The ‘De Minimis’ Exception
What if the task only takes one minute? Or thirty seconds? At a
certain level, compensating for such
time is impractical. The federal Ninth Circuit appeals court, which covers
that employees cannot recover for otherwise compensable time if it is “de minimis”—meaning
too negligible to matter. In a 1984 case titled Lindow v. United States, the
appeals court disregarded seven to eight minutes spent daily by employees who
voluntarily reported to work early to relieve outgoing employees.
Quoting an earlier U.S. Supreme Court case, the Lindow opinion
states: “When the matter in issue concerns only a few seconds or minutes of
work beyond the scheduled working hours, such trifles may be disregarded. Split-second
absurdities are not justified by the actualities of working conditions or by
the policy of the Fair Labor Standards Act. It is only when an employee is required
to give up a substantial measure of his time and effort that compensable
working time is involved.” Note that the California Division of Labor Standards
Enforcement also follows the de minimis rule.
A minute here or there checking emails might fall within the de
minimis doctrine. On the other hand, spending a substantial amount of time on
after-hours emails, in excess of a few minutes, may be considered compensable.
Suggested Precautions
for Employers
So far there have been
no reports of wage and hour litigation involving PDAs. Still, many employers
are taking precautionary measures. A few possibilities for you include:
1. Consider giving PDAs
or granting after-hours email access to exempt employees only.
2. If you give PDAs to
nonexempt employees, consider implementing a policy prohibiting after-hours use
and imposing consequences for violations. Enforce the policy by monitoring
usage or employing technological solutions to rule out such use. You must still
compensate the employee for actual time worked and pay overtime when required.
3. If business
necessities require after-hours emailing, implement a policy designed to limit
after-hours use and make sure to record time spent and pay overtime when
required. Management and exempt staff should limit or avoid sending emails to
nonexempt employees after hours. Note that Outlook and other email software
permit the sender to schedule the delivery time of an email.
Until the courts apply wage and hour rules to PDA use, it is prudent for
employers to implement restrictive policies and practices relating to the use
of these devices.