Should After-Hours Emailing Count as Work?

Expecting employees to answer too many late night messages is not an LOL matter — it could cost you overtime pay.
Should After-Hours Emailing Count as Work?
Judy Kneiszel

Technology has obviously changed how people work. Company-issued smartphones and laptops to workers provide flexibility that benefits both employee and employer. As the use of technology has become integrated into jobs, however, electronic devices seem to have created a perpetual workplace. And this, if you’re not vigilant, can become costly for you as a business owner.

The number you have reached …

If you’ve ever logged on to your laptop or smartphone with the intention of quickly checking your work email and looked up an hour or two later, you know how time can fly when you’re in cyberspace. As a business owner, being on-call comes with the territory, but you can’t expect the same dedication from workers unless you’re willing to pay for their time.

Consider how frequently you call, email, text or message employees after hours during what should be their personal time. Do you expect an immediate response? The very occasional and truly quick question is one thing, but if all the after-hours and offsite communications add up to significant time, this could be counted as work time for an exempt (hourly) employee. Face it, an employee is not having a 15-minute conversation with you via text message because they want to be your BFF. They think they have to keep responding to continue being your employee.

How big of a problem is off-hours work becoming? It’s not just disrupting family dinner, it’s disturbing the Department of Labor. Federal labor regulators have reported that they may revise a standard governing the amount of work time outside regular work hours that is considered too insignificant to require compensation.

According to the Fair Labor Standards Act, “hours worked” are all hours an employee participates in work-related tasks benefiting the employer that the employer is aware of. What does that mean? The legal language says the employer “suffers or permits” the employee’s work. This means time the employee is allowed to work, as well as the hours they are required to work, regardless of location. The bottom line is it’s your responsibility to make sure employees aren’t putting in too much unpaid work time, including time spent on electronic devices after official work hours.

Have a clear company policy

Make sure after-hours work-related calls, texts and emails to hourly employees are reserved for true emergencies. Nothing that can be put off until the employee is on the clock should be discussed after hours. Make sure this policy is clear to all employees. Salaried employees should not give hourly employees the impression that they have to be on-call and ready to respond every time they have a 2 a.m. brainstorm.

Just having a policy against off-the-clock work isn’t enough. Sometimes it’s impossible to avoid. Also have a “record all time worked” policy and reiterate that this includes work done at home via company-issued smartphones or laptops.

If there is a lot of off-hours work or communication happening, come up with a system for hourly employees to track their work activity outside of normal business hours and be compensated for it.

When possible, provide advanced authorization if you really do need an hourly employee to work from home after hours. Also, train supervisors that they are obligated to report to management any off-the-clock work they observe by hourly employees. This will nip the problem in the bud.

If employees work different hours from each other, a simple way to reduce off-the-clock electronic communication is to instruct workers that when they send an email to an hourly employee after hours they should put a directive in the subject line asking the recipient to respond when they return to work. This, of course, is for non-emergency communications.

More workers are becoming eligible

Questions regarding overtime work via devices are likely to become more common as the federal government considers changes to the rules governing who is eligible for overtime pay.
Proposed rule changes likely to go into effect this year will increase the number of workers who fall under the protection of the Fair Labor Standards Act by bumping up the salary threshold at which workers are eligible for overtime pay. That salary level has been around $23,000 a year but is likely to be raised to more than $40,000 a year. That means someone making $35,000 a year made too much to be eligible for overtime in 2015 but may be eligible for overtime in 2016 if he or she works more than 40 hours a week.

Those newly eligible workers higher up the pay scale generally have more responsibility and are more likely to have a company-issued smartphone or laptop. They could therefore be owed overtime pay when the late night minutes spent chatting about the next day’s work schedule start adding up.  

It’s just common sense

While technology is sophisticated, regulating its off-hours use is common sense. If workers are spending significant time off the clock working via electronic devices and can document it, they should get paid for it. Having that front of mind may just help you get a little more R and R as well. After all, it takes two to text.



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