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Everyone has had that moment when, after crawling into bed after a long day at the office, he or she experiences the fear that an assignment was forgotten or something needs to be checked on. To put minds at ease, employers may send out a quick e-mail to ask questions, tie up loose ends, or otherwise check-in on a matter. However, what employers might not realize is that, if a non-exempt employee checks that e-mail, even if it is not during work hours, the time spent opening, reading, and responding to the e-mail is compensable.
Under the Fair Labor Standards Act (FLSA), employers must compensate non-exempt employees for any work performed for the employer, including work that is completed outside of normal work hours. In order to receive proper compensation for work done on personal time, employees need to accurately document the time spent on work-related tasks.
As someone whose phone is always within arm’s reach, it seems ridiculous to log every second that I spend opening my work e-mail or checking my personal e-mail to see if I’ve received anything from my employer. When I’m not at work, half of the time I spend checking my e-mail is done out of boredom or habit. Like most people, I have a routine way of checking my social media and messaging apps. Although e-mail technically doesn’t qualify as either, I still lump it in, giving it a quick glance before turning off my screen.
It would be impossible for me to estimate how often I go through my checking routine on a daily basis, let alone pin point the exact amount of time I spend with work-related e-mails. Although a few minutes here and there may seem trivial, the time adds up.
If non-exempt employees fail to document the hours they spend checking their e-mail after work, it could lead to FLSA liability for overtime or non-payment of wages. In order to insulate themselves against wage and hour claims, employers need to emphasize the importance of proper time logging both when the employees are in or out of the workplace.
To ensure that time spent checking e-mails is properly documented, employers could restrict use of work e-mail to employer-owned devices that remain in the workplace. Having computers or other electronics with a specialized e-mail program can help reduce the possibility of employees checking their mail after hours and subsequently misrepresenting their hours worked. Additionally, employers may implement policies and procedures for HR or management to discuss potential work done after hours so that the time can be properly logged.
As technology continues to provide ways to facilitate connectivity, employers need to remain diligent in ensuring their compliance with the FLSA.
This blog post was written by Elizabeth Driscoll, a law clerk at Jules Halpern Associates LLC.