According to recent research conducted by the Pew Research Internet Project, as of January 2014, 58 percent of American adults have a smartphone and 42 percent own a tablet computer. Time spent on mobile devices by the average American consumer currently hovers around 2 hours and 42 minutes per day. For many, much of that time is undoubtedly spent checking and responding to work-related emails. Do employers need to pay employees for time spent after hours reviewing and responding to work-related emails?
The Fair Labor Standards Act (FLSA) requires covered employers to pay non-exempt employees for all hours worked. Covered employers are also required to pay non-exempt employees time and a half for all hours worked over 40 per week. Generally, “hours worked” includes all time that an employee must be on duty, on the employer’s premises, or at any other prescribed place of work. Also included, however, is additional time that an employee is “suffered or permitted” to work.
Under some circumstances, time spent after hours reviewing and responding to work-related emails may qualify as time that an employee is “suffered or permitted” to work. For example, if an employer specifically asks employees to check emails after hours, the time spent doing so will qualify as hours worked. Such time may also constitute hours worked even if the employer does not specifically ask employees to perform the task. Indeed, merely knowing that an employee is checking emails after hours and allowing the employee to do so may be sufficient to impose wage liability.
What if the time an employee spends checking emails after hours only amounts to thirty seconds? Or two minutes? Courts have acknowledged that compensating employees for a few seconds or minutes of work beyond scheduled working hours is impractical. As a result, employees cannot recover for otherwise compensable time if it is de minimus. While this exception is certainly helpful to employers, sometimes it can be difficult to know exactly when working time moves from de minimus to compensable.
The failure to properly count and pay for all hours that an employee works may result in a minimum wage violation if an employee’s hourly rate falls below the required minimum wage when his or her total compensation is divided by all hours worked. Further, the failure to count all hours worked will result in an overtime violation when hours worked in excess of 40 hours during the workweek have not been fully accounted for.
Contributed by Michael E. Stroster, Member with Miller Johnson.
View the on-demand webinar “Exempt vs. Non-Exempt Employees: Understand the Difference” with Michael Stroster.