Consider this scenario. Susie, an administrative assistant to a corporate V.P., is extremely helpful and hard-working. She eagerly responds to emails and texts from her boss from her smartphone while he is traveling for work, often in other timezones. Given his heavy travel schedule, these emails and texts may arrive at all hours and while he doesn’t always ask for her immediate responses, she does so as a matter of pride. This may include sending reports, fixing his travel snafus and sending updated itineraries, and helping him find information he needs for a meeting the next morning. In this situation, Susie should be getting paid for all of this work, and is probably entitled to not just her regular hourly rate, but overtime pay.
Almost 80% of Americans have smartphones according to recent estimates. And we love them. Everywhere we look, we can find someone checking a text or email on a smartphone. We are more connected than ever, and it allows us to work 24/7 as if we were sitting in an office. This can create problems when non-exempt employees send and receive off the clock texts, calls and emails for work.
The Fair Labor Standards Act and state laws require that employers pay non-exempt employees for all hours they “suffer or permit” employees to work. Employers typically must also pay overtime at a rate of one and one-half times the employee’s base pay rate for hours worked over forty in a single workweek. When the employer is aware, or invites, a non-exempt employee to send off the clock emails, calls or texts, the employer must have a way to track that time and ensure that the employee is paid. Typically, a minute here or there may not pose a problem. However, when the time adds up, it’s a problem.
There are many things an employer can do to avoid costly consequences. The employer can forbid off the clock work and not permit employees to install their company email accounts on their personal devices. If an employee breaks this rule, and works after hours, the employee can be disciplined but must be paid. The employer can also warn managers about sending after-hours texts and emails, and make sure that they ask the employee to record their time spent on these matters. If the employer wishes to permit this type of work, it can offer timekeeping apps to employees so they can record and report their time spent on work outside the office. This list isn’t exhaustive, but it highlights the fact that employers need to consider this issue, have procedures and policies in place, and take action to make sure they are complying with the law.
Contact the Buchanan Law Firm, 505-900-3559, if you have questions about complying with wage and hour requirements, or if you are an employee who hasn’t been paid for off the clock work.
