Managing After-Hours Communications of Hourly Employees

Employers are in a quandary today as the U.S. Department of Labor’s overtime regulatory changes are being litigated and Congress continues to discuss what may work better to achieve similar results. However, independent of what occurs with the Courts or Congress, there is something that every employer can do to manage their risk regarding smartphone usage by non-exempt or overtime-eligible (hourly) employees.

Let’s be honest for a moment. Are you one of the vast majority of working adults who checked your work email or text messages while you were at home over the last week? Do you think you are alone in that Pavlovian activity? Truth, I did it just last night. According to a recent Deloitte study 77% of people surveyed checked their email within an hour of going to bed. But wait, there is more – because upon waking up in the morning the same study found that 86% of respondents checked their email within an hour of getting up. That is just email. But of course today our email inboxes are being deluged and many are moving more towards instant messages for more time sensitive issues, which as you can imagine is also being checked with regularity both when it’s time to sleep as well as when it’s time to rise.

I believe that these statistics are not a major surprise to you, since the most utilized technology today is the smartphone and it is often within reach, even when we sleep. Interestingly the smartphone of today has not been around that long and yet is having a significant impact in our daily lives as the Deloitte study confirms what we already know – most of us are addicted to our phones. This recent phenomena is likely to only increase as the Internet of Things becomes ubiquitous in our society. However from an employer’s standpoint this social reality raises a serious concern and issue that should be considered before your organization is forced to face the question – Do you have a policy on the use of email and/or text messages for after-hours communication?

The answer may result in a costly proposition, depending on who is asking and when it is asked. From the lens of considering non-exempt or overtime-eligible (hourly) employees the answer may result in significant liability on the part of an employer who has not previously considered and created a formal policy to cover this growing societal issue.

Here is a quick example of the expanding problem. You have an hourly employee named David who is making $17.50 per hour and works a standard 40 hour work week for Acme Corporation. David is very driven and trying to constantly be responsive to others. In the absence of any delineated policy David checks and responds to both work emails and text messages while at home that average about an hour a day or 5 hours a week. David does this each week he works, which equates to 50 weeks a year. 5 hours of time responding to work emails and text messages after-hours over a 50 week period at the end of the year would equal 250 additional compensable hours of work for which the employer would be required to pay him (at his overtime rate). David’s overtime rate of $26.25 times 250 more hours, means that he would be entitled to another $6,562.50 in compensation. This example is for just one person in the Acme Corporation. What if it were for 50 people? Or over 100?

The important item to note here is that the U.S. Department of Labor, in following the Fair Labor Standards Act (FLSA) states if an employee is “suffer[ed] or permit[ted] to work,” then they need to be compensated, unless the time is deemed de minimis. Certainly we can all agree that 250 hours of additional work is not de minimis.

As an employer this all leads to a challenging issue, since most of us do check email and text messages just about around the clock, almost by habit, how can a single employer change what we all seem to do so it does not cause future litigation or additional financial exposure?

One thing an employer can do is honestly assess your employees, particularly those who are non-exempt or overtime-eligible (hourly). Consider how many people you have in these roles. What are their functional duties? How critical is their immediate response to emails and/or text messages or can it generally wait until the next business day? Under what circumstances would an immediate response be appropriate? Similarly, what kind of organizational culture do you have and what do you want it to be? The answers to all of these questions and others will help direct you in a pragmatic way to design, implement and enforce an after-hours communication policy that compliments your organization rather than hindering your ability to complete the work that you do.

It would be far too easy to say that you will turn off the email and/or text messaging functions on your system, but as we see from the Deloitte study that is not realistic for most organizations today. However, a thoughtful plan that is communicated to employees and uniformly enforced can assist in more ways than just dealing with wage and hour concerns. Of course, if you have any questions about this information listed here or related wage and hour issues, feel free to contact our firm for more information.

By:  Louis R. Lessig, Esquire
Partner at Brown & Connery, LLP