Several years ago, as I was preparing to head off for a long weekend hiking in the Yosemite backcountry, I got a call from the CEO.
“Why won’t you be reachable?” he wanted to know. He just read the email about my being out of touch with the office.
Because, I started to explain, there are no cell towers or service in the middle of the wilderness. He cut me off with a curt, “Maybe you should vacation somewhere else.”
An isolated incident? Not anymore. Today, says a Manpower survey, nearly two-thirds of the responding workers at least sometimes get emails in their off-hours from bosses who expect a reply.
An FLSA issue over “trivial” time requests
“It’s now taken for granted that everyone has to check their work email during the weekend,” says Monika Morrow, SVP for Manpower’s Right Management unit.
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That’s most true for exempt workers, who likely made up the bulk of the 569 survey respondents. Non-exempt workers, however, have to be paid. Maybe not for every contact, but, as we’ll see in a moment, more often than not.
For exempt workers, it’s pretty much black and white. Employment lawyers agree that for those salaried people, after hours contacts just go with the job.
“It’s not a wage and hour issue” if the employee is exempt, says Anthony Oncidi, head of the California Labor & Employment Law Group at Proskauer Rose in Los Angeles. “They do the work or they can choose to leave.”
For non-exempt workers though, “it’s very much an issue we are beginning to see percolate through the courts.”
The Fair Labor Standards Act and state labor rules require employers to pay non-exempt workers for after-hours work that goes beyond minor, almost negligible amounts. Responding to a supervisor’s call about where a certain file might be, or if a bill was paid might be considered de minimus and not compensable if the time involved was trivial. Historically, such time slices weren’t easily measured and were too small to be worth the effort. The rule of thumb was less than 10 minutes.
How does answering a BlackBerry fit in?
Now, though, digital devices easily record and track messages and online time. As Oncidi notes, “it is no longer a swearing contest.” And companies that previously issued BlackBerries to only certain employees, now are distributing them widely.
In Chicago, a police sergeant brought a class action suit for overtime pay because he and others were required to check and respond to messages on their department issued devices while off-duty. The case is awaiting trial. A similar sort of case was brought by an ATT worker in California. The case was dismissed last year.
It will only be a matter of time before one of the cases reaches an appeals court, which will have to wrestle with the de minimus issue.
Attorney Todd Fredrickson, managing partner in the Denver office of labor firm Fisher & Phillips, says his rule of thumb for duration is five minutes. But things get fuzzy in situations where, say, there are multiple emails each of which may entail only a few moments.
What he’s telling his employer clients is “if you don’t want to pay for it, don’t let it happen.”
“This is a hot one for collective action,” he cautions.
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Under the Fair Labor Standards Act, a successful plaintiff collects the back overtime, plus “liquidated damages” equal to the amount of back pay, and the employer pays attorney fees. And the FSLA provides for class actions, but the employees must opt-in. However, that’s not a major hurdle so employers shouldn’t take much comfort in that.
What they should do, says Oncidi, is to reexamine who gets electronic devices, and make clear what the overtime policy is — to the rank and file as well as to managers.
“Don’t just let these things go on,” he says. Companies need to be “having a specific consciousness about these things.” Even unauthorized overtime has to be paid if the company “permits or suffers the employee to work. That’s what the language says,” explains Oncidi. Even if the policy says no overtime unless authorized, if the circumstances implicitly mean work is to be done but no express authorization is included, it has to be paid.
His example: An executive on an overseas trip who emails his non-exempt assistant who is off the clock to rebook a flight and rearrange the itinerary has implicitly authorized the overtime.
Employer consequences — even for exempt workers
While exempt workers have no legal rights to a 40-hour work week, it doesn’t mean there aren’t consequences for an employer.
In California, even exempt employees are entitled to a real vacation. Text, call or email an exempt vacationing employee and if they do work the law forbids you from counting it as a vacation day.
Even so, Right Management’s Morrow points out that employers shouldn’t expect everyone to be “on” 24/7. “If this is everyday, you can’t sustain it,” she says. Tired workers lose focus and productivity is hurt. Turnover goes up and the company employment brand is hurt.
“The 24/7 workplace is here to stay. But workers need a break. They need downtime to decompress.”
Workers regularly swamped by after-hours emails, texts, or calls should raise the issue with the boss. Rather than complain, she suggests inquiring, counseling employees to, “Talk to them about their expectations about the emails. What do they expect in the way of a response.”
Some bosses will just fire off an idea, a project, a reminder as they think of it and not expect an immediate response.
Morrow has one other suggestion: take an electronics free weekend. Let everyone know that you’ll be unavailable all weekend.
And hope that unlike my boss, yours will understand.