This age of technology has, in many cases, created the 24/7 work day and the virtual “office” that is no longer constrained by the walls and ceilings of your company’s office building. Many employees can remotely access e-mail through their computer or a smartphone device. This presents a problem when non-exempt employees are working after hours and the employer doesn’t necessarily know that the work is being performed.
Take, for example, the supervisor who sends work-related e-mails to one of her subordinate employees, and then that employee looks at and responds to the e-mails from his stadium seat at halftime of a Boise State University football game on a Saturday afternoon. Is that “work” that must be recorded and compensated?
Requirements for Compensating Employees who Work After Hours
There are two principles at play here. First, the federal Fair Labor Standards Act (FLSA) requires that covered employees must be compensated for all work performed. Second, however, is the “de minimus” doctrine, which generally allows employers to ignore (i.e., not compensate for) otherwise compensable work of a few seconds or minutes beyond the employee’s scheduled working hours. A federal court in Florida recently issued an interesting opinion that addressed the interplay between these long-standing principles and an employee’s rather common use of technology.
In Lewis v. The Keiser School (Southern District of Florida), plaintiff was a non-exempt employee. However, she was paid a bi-weekly salary for a 40-hour workweek. In her lawsuit, she claimed (among other things) that she was not compensated for sending lunchtime and after-hours e-mails. Relying on the de minimus doctrine, the court rejected that claim. In its opinion, the court held that the e-mails were not lengthy and could not have taken more than a few minutes to draft and send. As a result, the time Lewis spent sending e-mails at lunch was de minimus as a matter of law.
The court made a point to note that the employee “clocked herself in and out and accounted for her own time,” and that she did not present any evidence that the company “forced her to clock out and continue working through lunch.” Thus, the court found that “it makes no sense to say that the company should have paid Lewis for drafting and sending e-mails at times that she herself indicated she was clocked out or taking lunch.”
The lesson for employers to learn from the above case is this: If your company does not have a mechanism for non-exempt employees to track and report time spent both during and after working hours, then your company has no way to prove that the time an employee spent checking e-mail after work was minimal. The burden is always on the employer to show what hours were worked, and only a required reporting/supervisor monitoring system for tracking time will give the employer the edge needed to contest any future wage claims.
INSIGHTS FOR EMPLOYERS
- Consider only giving exempt employees company-issued smartphones and/or access to the company’s e-mail from outside of the office.
- If non-exempt employees are given smartphones and e-mail access outside of the office, implement a written policy regarding after hours work. Employers should counsel supervisors to be cautious about sending e-mails to non-exempt employees outside of working hours or instruct non-exempt employees that they are not required to respond to such e-mails.
- Require employees to accurately record their time spent working both during and after working hours.
- HR and payroll should monitor and ensure supervisors are enforcing the policy.
- If the policy is not followed, counsel and discipline both the employee and the supervisor (but know that the employer will still be obligated to pay the employee for actual time worked, including overtime when required).