E-mailing at home: The latest FLSA trap?
August 24, 2009 by Sam NarisiPosted in: Employment law, HR Tech, In this week's e-newsletter - Tech
Technology’s made it easier for employees to get more work done, anytime and anywhere. That sounds great to managers — but it can spell big trouble for HR.
When bosses encourage or require nonexempt employees to work off the clock, that’s a recipe for wage and hour violations. Even simple tasks like checking e-mail count as work and can lead to costly court battles.
Take this recent lawsuit:
Last month, three nonexempt 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 given company-issued smartphones. They regularly received e-mails and text messages from customers and supervisors — and were required to respond to them, whether or not they were on the clock.
When they reported those hours on their time sheets, 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.
What HR can do
Here’s how HR can help avoid a lawsuit like T-Mobile’s:
- Don’t give devices to nonexempts – Nothing can stop employees from performing work on their own phones and computers, but giving BlackBerrys to nonexempt employees sends the message that they’re expected to work off the clock.
- Train managers – Supervisors should avoid e-mailing nonexempts after hours. Again, it sends the message that they’re required to respond.
- Create and enforce policies – Employees need to be paid for any work they do, but you can discipline people who work when they aren’t supposed to.
Tags: blackberry, fair labor standards act, FLSA, nonexempt, smartphone, T-Mobile USA
August 18th, 2009 at 10:36 am
I am usually in favor of the company’s standpoint but not in this case. Enough is enough. Too many managers these days do not respect the personal time of their employees. If a non-exempt employee is expected to respond to email while they are “off” they ought to be paid for it.
August 18th, 2009 at 11:15 am
I agree with Enough. Those of us who are lucky enough, have roughly 6 hours a day of “Personal” time much of which is spent on household chores before relaxation. We spend 8 hours at work, 2 hours commuting and presumably another 8 hours sleeping. Our personal time is precious, and if employers are going to cut into it, they should be required to pay for it.
August 18th, 2009 at 11:42 am
I think one of the keys to the story is that it states that the employees were “required to respond” to the messages, which seems to make it a job requirement. I think the company management is a little confused about the different expectations for exempt versus non-exempt employees. The employees should be compensated for their time.
August 18th, 2009 at 12:22 pm
I’m not so sure I agree with everybody. How much time was actually being spent responding to the emails? Are these devices available to be used for personal reasons? If so, is the company actually taxing the employees for the use of the device? If not, then perhaps the tradeoff of having a fancy cell phone to use for personal reasons would be a few minutes here and there off the clock.
August 18th, 2009 at 12:26 pm
If nonexempts are “required” to respond to email received during off hours, management is “required” to pay them for it.
August 18th, 2009 at 12:34 pm
Some companies are so anxious to promote the “team” and make their nonexempt employees feel they are just as important as the exempt employees, they fall into the trap of equal expectations….like responding to emails on a blackberry on off hours….another electronic tether! they probably are of the mind that the blackberry is a “perk!”
August 18th, 2009 at 12:41 pm
It seems to me the company is in the wrong and should pay for the time spent on company business. I sometimes joke I am not worthy of a Blackberry and am quite thankful for that. I have not been called by the office during my personal time in many years and for that I am grateful.
August 18th, 2009 at 1:17 pm
My first thought is shared with many, if those non-exempts are ‘required’ to respond (even if their cell phones/blackberries are provided by the company) what are the consequences of those non-exempts NOT answering those emails or calls – possibly termination. Therefore, they would be working for the betterment of the company and therefore they should be compensated. The non compensation would result in a benefit to the company and not the employee – that sounds like it not only violates so many labor laws at both a state and federal level, but again another large organization is improving its bottom line at the expense of what amounts to free labor.
August 18th, 2009 at 1:26 pm
“de minimus” may sound like a key phrase here, but think of the interruption as taking a MINIMUM of 10 minutes anyway – even if it took only one minute to process an email and answer it. Why 10? Because 1) I’m interrupted from what I’m doing whether its family time, meal time, TV time, or sleep time. 2) It puts me in MINDSET of work – I have to THINK about the work response. 3) After I hit SEND on the Blackberry, the device is done – not so my brain; I have been interrupted, my mind needs some time to come off of that interruption and it takes me a little while to get it set BACK to what I was interrupted from.
And as far as the “perk” of using it for personal stuff so I ought to feel “priveleged”? Pffft. Being “gifted” with something as long as I keep working is not really a gift!
August 18th, 2009 at 1:42 pm
I agree with Mr Smith and will add that there is no privacy on a company phone so why would anyone use it for personal reasons.
August 18th, 2009 at 2:28 pm
I think way too many people are willing to take work home with them. It seems that there are a lot of people who can’t put down their cell phones or blackberrys down when they are at home or even walking down the isle in the grocery store. I think it’s so hilarious when I see someone walking down the isle talking to what seems to be air only to notice a funny looking earpeice in their ear. I really don’t think that it’s a very hard thing for employers to get their staff to take cell phones home and answer calls and text messages. I think this society is addicted to them and don’t mind much anyway. So put up your phones and relax with your family for a change.
August 18th, 2009 at 2:46 pm
Spending time with family is certainly important. As an exempt employee I give a lot of “love time” to my company. I have no company cell phone. Working at all, especially in this economy, should be the privilege. Too many employees now feel entitled to too many things. Perhaps under the definitions of FLSA law the employees should be compensated for a few minutes of work here and there. Maybe some people are too willing to take work home. However, a lot of employees are not willing to go the extra mile, present barely satisfactory work, and still expect a ton of entitlements. Some of the laws that are created to protect the working class are going to crush smaller companies, and more jobs are going to disappear.
August 18th, 2009 at 3:08 pm
Another potential negative of the company provided device is taxation as a benefit. I understand this too may be coming down the pike when an employee uses the device for personal reasons. Employees may need to document their personal and business usage and be taxed for it. I think companies may need to reconsider whether or not its worth it to have 24 hour access to non-vital personnel.
August 18th, 2009 at 3:20 pm
To Not so sure: A lot of companies are not willing to go the extra mile either. Don’t get me wrong, I work for a great company now but I could not say as much as in the past. Sure, some laws are created to protect the working class but some are designed to protect employers also such as “at will employment” laws. However, the only reason jobs are disappearing in the U.S. is because we allow them to thanks to free trade which equals abusive and oppressive wages.
August 18th, 2009 at 3:45 pm
Clearly this issue is complex in its nuances. However, the law is clear with respect to compensation for non-exempts. The definition of “de minimus” work has been established by lower courts, on a case by case basis. Though true, the advent of instant communication devices has exacerbated the matter with respect to the meaning of “de minimus”, it is the prudent employer who is careful in its use of such words as “required” and the explanation/understanding of when required work is to be done for non-exempts. In addition, for the small (or large) company faced with employees who have an unrealistic sense of entitlement, there is no law against ineffective management. Finally, the tax implication of the personal/business use of company provided tools or equipment is immaterial to the issue of required compensation to non-exempts for required work.
August 18th, 2009 at 3:56 pm
I have worked as an exempt employee for over 30 years. I agree with the FLSA. Companies tend to intrude too much in the private time of their employees and should pay for those interuptions. Over the years my private time has been infringed on for reasons that could easily wait until the work day begins. It has becomes an expectation that the employee is always available because they are in an exempt status.
The same thing becomes true when you tell a non exempt that they must respond to a text message or and email during off time. It then becomes an expectation that even though they are off they are available to work at any time. Once this type of practice begins it is always abused by the employer.
Generally, the issues are not so important that thye can not wait until the work day begins. If so, then hire a second shift. And put some people to work.
Every time my phone rings when Im off I get the dont they know you are off lecture.
August 18th, 2009 at 4:03 pm
T.C. I agree wholeheartedly. Seems like some companies feel just because you are on their payroll they think they own you and should be able to drop what you are doing in a moments notice to meet their wishes.
August 18th, 2009 at 6:12 pm
Have to agree with TC — it’s almost never critical and could easily wait until the next morning. It’s the downside to always being available through technology. Also, in the U.S., we still operate on the residue of the Puritan ethic so we only reluctantly allow a personal life — most ‘civilized’ countries allow a reasonable amount of vacation and holiday time, unlike here in America. It’s my belief that our employees would be more productive if our demands on their time were not so ridiculous.
August 18th, 2009 at 8:35 pm
My wife’s job, non-exempt, sends her text messages on her personally-owned cell phone with her work schedule. More often then not, this occurs less than 24 hours in advance, and consists of basically working a late shift.
So…..
1. The company is exploiting the fact that she has made her personally-owned equipment, for which SHE pays a service charge, accessible for business use.
2. She is NOT being informed with sufficient advance notice, such that she can arrange transportation and child care (theoretically — meaning, her job is taking advantage of ME, in that I’m available at the “last minute” to deal with it)
3. She can’t make personal plans between the hours of 5 and 9 because she never knows in advance whether she will be required to work or not.
On top of this, her company criticized her for her personal appearance, which by the way, is NOT an issue.
My response to her: Tell them they don’t pay you enough to care about a trivial matter regarding your personal appearance, and tell them that they can stop calling your cell phone, texting you, and expecting you to work late. Tell them you’ll start recording hours on your timesheet for every time you get a phone call or text message while not at work, and for 4 hours per day that you are basically required to be “on call” for the company. And by the way, you’ll be expensing all or part of your cell phone bill each month for business calls and text messages.
August 19th, 2009 at 12:31 pm
I’m amazed that such a large company with the vast resources for legal and HR that such an issue could happen and get to this level. The FLSA is relatively straight forward, de minimus aside. The appropriate response is to make the teammate(s) whole and revisit your policy including training and accountability. Managers can’t know what our teammates do on their own time, but when their actions/comments hit the radar, basic employee relations is to correct this issue.
This is another issue to just shake your head and laugh at……but then check your own policy.
August 19th, 2009 at 7:52 pm
Our firm severely limits giving smartphones to non-exempt employees for the reasons cited above (with the exception of certain IT support personnel whose job description requires them to be on call during specified hours.) However, we are finding that employees are voluntarily logging on to our email systems from home or havine company emails forwarded to their personal smartphones. When we learn anecdotally or by receiving an email that was sent during off-hours, we counsel the employee about this unauthorized work, telling them that they need to report it on their time card so they will get paid, but also informing them that this was unauthorized overtime work, which is commented on as a negative in their annual performance evaluation. I also document in writing each time I inform an employee that their after-hours email usage was contrary to firm policy, and that we are asking them to report it as time worked on their weekly time card.
August 21st, 2009 at 9:14 am
At a time when hard working employees are not receiving raises and are picking up the slack for layed-off workers, employers should be careful not to invade emloyees’ personal time. Even though I agree with the DOL’s stance, not everything provided to employees should come at the cost of major arm twisting of employers. It’s ok for an employer to provide something to it’s employees because it’s just good ethical business practice to do so without the behavior being forced by a regulation. An employer should expect and want to pay for an employee who monitors/reads e-mails on personal time because it’s a good business practice to do so. It’s employers who start nitpicking at this kind of stuff that have unions come knocking on their doors, and they scratch their heads and wonder why.
August 21st, 2009 at 10:41 am
I think Kev makes a great argument — we’re expecting more from all our employees but wanting to reward them less, and that’s just counter-productive. In my office, due to layoffs, half the staff is doing all the work, plus we have three mandatory furlough days each month. I think if the job market wasn’t so tight, we’d have even fewer employees. So let’s encourage behavior that goes over and above and that benefits the company, rather than punishing those conscientious, diligent and loyal employees.
August 25th, 2009 at 11:46 am
Bottom line is if they did not respond to emails, text messages they would have been disciplined/terminated, yet their only “reward” was continued employment.
I agree with RandiG, we are all doing more with less, and that includes less wages, no matching, higher insurance premiums etc.
September 25th, 2009 at 10:28 am
Beware of Employers bearing gift! With every gadget or device, i.e.e, blackberry, laptop, access to a virtual network connection to the office comes an expectation that the employee will respond to inquiries or do work on their personal time. This is a good opportunity to add in your handbooks and inform managers that non exempt employees must be paid for OT. The rest of us who are exempt can be tied to our wireless devices 24/7. Iknow a manager who responds to calls on his cell in the bathroom. Now that is going above and beyond the call of duty! No pun intended!
November 2nd, 2009 at 8:28 pm
Companies are going out of there way these days to make sure that employees do not use work time for personal business such as phone calls, personal emails and social networking sites. However, they have no problem asking an employee to take some of their personal time to do work. For me, its the double standard that I find unfair.