Are employees owed overtime for checking and answering email after hours?

  • Jul 12 2015

By Ted J. Schneider, Esq.

Technology is a double-edged sword. It allows us to work remotely and to have greater flexibility as to where and when we work, but the freedom it affords can also be a burden. When you can work from anywhere, and at any time, it often feels like you should be doing so!

Studies suggest people are caving under the pressure – whether explicit or implicit – to work while technically off the clock. According to the Pew Research Center, approximately 44% of Internet users regularly perform some job tasks outside the workplace.

All the work that is being done outside of work hours is creating a compliance problem for many businesses. California law and the federal Fair Labor Standards Act (FLSA) require employers to compensate employees that are classified as nonexempt for all time worked. These nonexempt employees must be paid time and a half (overtime) for all hours worked over eight hours in a day or forty hours in a week. This means that employees need to be paid (at overtime rates if applicable) for time spent checking and responding to emails, calls, texts, etc. during non-work hours.

In order to remain compliant in this technology-driven age, we advise our clients to take the following steps.

Develop a Timekeeping Policy that is Compliant with the law.

Explicitly tell your nonexempt employees, preferably in writing and as part of your employee handbook, whether they are permitted to work after normal business hours.  Make it clear that “working” includes checking emails, texts and taking phone calls.

Implement the Timekeeping Policy.

A policy is not worth the paper it is printed on if it is not implemented consistently. Make it easy for employees to report their after hours work, and discipline employees who do not report their after hours time. Make it clear that working “off-the-clock” is strictly prohibited. That is, make sure employees understand that all time worked, even if it is after normal working hours, must be recorded and documented.

Enforce the Timekeeping Policy.

When off-the-clock time is reported, pay your employees for that time. Although you must pay employees for all after hours work, if such work was not authorized or done in violation of company policy, do not be afraid to discipline employees who do not comply with these expectations. If you do not want to pay employees overtime for working after hours, then ensure that your managers and supervisors are trained not to send emails or text messages to employees after hours, because employees will be tempted to respond.  Hold your emails until normal business hours to avoid establishing an expectation that your employee should be checking or responding to emails while at home.

If you have any questions about paying employees for work done after hours, or establishing an off-the-clock policy, or any other employment related issue, contact an experienced labor and employment law attorney at Schneiders & Associates, L.L.P. today.

Posted in: Employment Law


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