The Practical Employer

by Jonathan T. Hyman, Esq

Jon Hyman wrote the article below for WorkForce Magazine

We live in a smartphone society. Take a walk down the street or through your local mall, and count the number of people glued to their phones as they walk along.

I wager that the ratio of smartphones to regular cellphones is well in excess of 50 percent. Our phones have become an indispensable part of our daily routines, from Facebook to Instagram to Twitter to Snapchat, not to mention old-school texting and emailing. I call it the “phonification” of our culture.

What happens, however, when employers seek to capitalize on this overdependence by requiring employees — exempt and nonexempt — to remain connected to work via their mobile devices 24/7? Do you have to compensate employees for the time spent checking emails while off the clock?

For exempt employees, the answer is simple. Exempt employees are paid a salary that compensates them for all hours worked in a week, which means that you owe them no additional compensation (overtime or otherwise) if they spend their nights (like I do) on the couch in front of the television cleaning out their inboxes.

For nonexempt employees, the answer is thornier. Recently, the U.S. Labor Department’s Wage and Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.”

Moreover, this issue will become even more difficult for employers, as the Labor Department is set to raise the salary threshold for various Fair Labor Standards Act’s administrative, executive, professional and computer employee exemptions from $23,660 a year (or $455 per week) to $50,400 (or $969.23 per week). This move will change the exempt status of an estimated 5 million employees, entitling them to potential additional compensation for time spent reading and responding to email off the clock.

What does all this mean for employers? It means that you need to take a long, hard look at which employees you are requiring to connect when they are off the clock. If you are requiring your nonexempt employees to read and respond to emails after their workday “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not have to pay a time-and-a-half premium).

It is all but certain that the Labor Department considers this time compensable; federal courts, however, which have the final say, may not be so quick to judge. Even if reading and replying to work-related email is compensable “work” (and it likely is), employers might not have to pay employees for it.

Most messages can be read in a matter of seconds or, at most, a few minutes. The Fair Labor Standards Act calls such time “de minimus,” and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each fraction of a minute an employee spends reading an email.

Nevertheless, if you want to eliminate the risk, consider a couple of steps:

1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt vs. nonexempt.

2. Consider implementing an email curfew for your nonexempt employees, which prohibits them from emailing while off-duty. Keep in mind, however, that even if you tell employees not to read, send or otherwise work on emails during off-hours, if an employee disobeys, you still have to pay the employee for the “working” time (which would be at a time-and-a-half premium if the added work takes the employee over 40 hours during that week). Your only remedy is to discipline the employees for the policy violation, with the hope that punishing one employee for violating an email curfew will go a long way to deterring others from future violations.

The more difficult issue, however, is how employers balance the need for instant access and around-theclock access to employees vs. the cost of paying employees for that responsiveness. This business decision will vary from company to company (based in part on a company’s culture), and will dictate how you react to this compliance idea.

More importantly, this issue is squarely on the Labor Department’s radar and will not be going away anytime soon. It illustrates the difficulty the law has in keeping up with the stunning pace of technology.