Do we have to pay employees for checking e-mail outside of work?

Franczek Radelet PC

Bill Pokorny

August 5 2011

Q. Our company provides remote access to e-mail for all employees, and some of our hourly employees carry iPhones and Blackberries with access to their work e-mail. Most non-exempt employees only work during regular business hours, but some will occasionally check and respond to e-mail after hours or on weekends. Do we need to pay employees for this time? If so, how do we track it?

A. Yes, employees need to be paid for time spent reading or responding to work-related e-mail. If this occurs only sporadically and the time involved is truly de minimus - for example, if the employee occasionally types out "Thanks" or "OK" in response to a short message - it may not be an issue. However, if you do not have any mechanism for employees to track and report this time, you may have no way to prove that the time spent was in fact minimal. When a disgruntled current or former employee files a complaint asserting that they worked an hour or two extra every week for three years, will you be able to prove otherwise?

There are several ways to address this problem. The safest approach from a wage and hour perspective, though perhaps not the most practical, is to limit remote e-mail access to exempt employees. If that is not possible, it is vital to adopt a policy requiring employees to report their time, and a realistic means for them to do so, either through manual timesheets, the company's timekeeping system, or some other means. Perhaps even more important than adopting policies is making sure that they are followed. Supervisors need to be trained to check employee time records against the work that they know (or should know) their employees are performing. HR or payroll should follow up and ensure that the supervisors are doing their jobs. If the policies are not followed, appropriate counseling and discipline should follow - both for any employees who fail to properly record their time, and any supervisors who fail to properly enforce the policy.

If you know that employees will regularly spend a certain amount of time per day checking e-mail outside of work, you can also adopt a policy providing a fixed amount of paid time outside of work for tasks like checking e-mail, in addition to the work time recorded for each day. For example, an employee who works 7.5 hours per day could be paid for an extra 15 minutes per day to cover any time spent outside of work checking e-mail. If the employee actually spends 15 minutes or less on e-mail, no additional pay will be due. However, any time worked in excess of the allotted 15 minutes would need to be paid, and the company would still need to provide a mechanism to report this time.

Don't Sweat It

SANDY, Utah — As part of continuing educational efforts by the U.S. Department of Labor's Occupational Safety and Health Administration about the dangers of extreme heat, Secretary of Labor Hilda L. Solis today announced the release of a free application for mobile devices that will enable workers and supervisors to monitor the heat index at their work sites in order to prevent heat-related illnesses.

"Summer heat presents a serious issue that affects some of the most vulnerable workers in our country, and education is crucial to keeping them safe," said Secretary of Labor Hilda L. Solis. "Heat-related illnesses are preventable. This new app is just one way the Labor Department is getting that message out."

The app, available in English and Spanish, combines heat index data from the U.S. National Oceanic and Atmospheric Administration with the user's location to determine necessary protective measures. Based on the risk level of the heat index, the app provides users with information about precautions they may take, such as drinking fluids, taking rest breaks and adjusting work operations. Users also can review the signs and symptoms of heat stroke, heat exhaustion and other heat-related illnesses, and learn about first aid steps to take in an emergency. Information for supervisors is also available through the app on how to gradually build up the workload for new workers as well as how to train employees on heat illness signs and symptoms. Additionally, users can contact OSHA directly through the app.

The app is designed for devices using an Android platform, and versions for BlackBerry and iPhone users will be released shortly. To download it, visit http://go.usa.gov/KFE.

More than 30 workers died from heat stroke in 2009. Thousands become ill from heat exhaustion and other heat illnesses every year. Some of the highest illness rates occur among construction workers, farmworkers, roofers, landscapers, baggage handlers and other air transportation workers.

Effective heat illness prevention requires simple planning. Employers are responsible for protecting workers by providing plenty of water, scheduling rest breaks in the shade or air-conditioned spaces, planning heavy work early in the day, preparing for medical emergencies, training workers about heat and other job hazards, taking steps to help workers — especially those who are new to working outdoors or who have been away from work for a period of time — acclimatize to the heat, and gradually increasing workloads or allowing more frequent breaks during the first week of an outdoor project.

Information for employers about using the heat index to calculate and address risks posed to workers also is available through OSHA's new Web-based tool "Using the Heat Index: Employer Guidance," which is accessible at http://www.osha.gov/SLTC/heatillness/heat_index/index.html. OSHA's other educational and training tools about heat illnesses prevention, available in English and Spanish, can be found at http://www.osha.gov/SLTC/heatillness/index.html.

"OSHA's prevention message is clear: Water. Rest. Shade. These are three little words that make a big difference for outdoor workers during the hot summer months," said Assistant Secretary of Labor for OSHA Dr. David Michaels.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance.For more information, visit http://www.osha.gov.

No Pitts Stop at the Convenience Store

Turning down a make-whole settlement offer was not a bar to the plaintiff’s moving for class certification on three claims – FLSA, Nevada wage-hour law, and breach of contract. The decision in Pitts v. Terrible Herbst sees no material distinction between class actions and collective actions, and rejects all of the employer’s arguments to the contrary. The US Court of Appeals for the Ninth Circuit is often viewed as an employee-friendly jurisdiction, and this opinion does nothing to dispel that image.

Read the opinion.

Here's a Tip

If you want to prove that your bartenders are “tipped employees” under the FLSA, you need to be able to show that tips are “customary” for them. One restaurant found out the hard way that “service bartenders,” who filled drink orders but had no direct customer contact, didn’t make the cut for the tip credit.

Read the opinion.

Dellinger v. SAIC: It All Depends on How You Define the Word "Employee"

In an important decision regarding the anti-retaliation provisions of the Fair Labor Standards Act, the US Court of Appeals for the Fourth Circuit agreed with Judge Cacheris of the Eastern District of Virginia that the clear language of the statute restricts its application to "employers" of the retaliation victim. In spite of Natalie Dellinger's contention that Science Applications International Corporation refused to hire her upon discovery of her having sued a former employer for FLSA violations, the court said "a prospective employee cannot sue a prospective employer for retaliation." Rejecting the argument that the law says that an "employer" cannot retaliate against an "employee," and that Dickerson was an "employee" while SAIC was an "employer," two members of the three-judge panel concluded that contrary interpretations of other employment statutes were either not in point or were not well-reasoned. Judge King dissented, saying that the Supreme Court's 1997 decision in Robinson v. Shell Oil Co. mandated a different result, but the majority saw no persuasive impact of the Robinson decision, where the Court held that Shell violated the differently-worded retaliation provisions of Title VII of the Civil Rights Act of 1964 by its conduct toward a former employee. Unlike the plaintiff in the Robinson case, Dellinger had never worked for SAIC, and the decision not to hire her was not the basis for a retaliation complaint.

Click here to read the case.

Beware of Verbal Discrimination Complaints

From Compensation Today: http://blogs.payscale.com/compensation/2011/08/flsa-settlement.html

Non-residents Entitled to Overtime

Oracle Corp tried to get an overtime lawsuit against it thrown out by arguing that, as non-residents, some of its employees weren’t entitled to sue for violations of California overtime law. But the court didn’t bite.

Click to read more at HR Morning.

Also see the Wage Hour Blog for more information.

It’s Five O’Clock Somewhere: Telecommuters and the Difficulty of Tracking Hours Worked

Kimberly A. Richards, a summer associate in Womble Carlyle's Winston-Salem office, authored this article.

Employers considering a telecommuting program should be aware of the difficulties under the FLSA if a telecommuting employee is misclassified as exempt. While employers covered by the FLSA are required to maintain records of the hours worked for non-exempt employees, there is no such requirement to maintain records of hours worked for exempt employees.

If an exempt employee brings an FLSA claim based on an alleged misclassification, employers likely have no time records for that employee with which to rebut allegations of overtime worked. The employee need only establish a just a reasonable inference of hours worked. The employee may do this solely based on the employee’s credible testimony. Even if the employee only establishes an approximation of hours worked for which overtime is due, the court may award damages.

While case law illustrating a successful rebuttal by the employer is scare, some examples of useful evidence may include supervisor testimony, computer logs, phone logs, or building entry logs, for example. In the case of telecommuting employees, rebutting the employee’s testimony is even more difficult. Telecommuting exempt employees are likely supervised less closely than other employees, and they may use their own computer equipment. Employers with non-telecommuting employees holding the same position as telecommuting employees may be able to apply data, like building entry logs, to telecommuting employees to establish average total hours for the position. However, rebutting credible testimony by the telecommuting employee will be an uphill battle.

The U.S. Department of Labor (DOL) is not making an employer’s rebuttal any easier. The DOL is empowering employees under the FLSA by encouraging employees to keep their own records of hour worked. In May of 2011, the DOL launched a smartphone application to assist employees with tracking the hours worked and therefore, the wages they are owed. Although employees are always free to track their own time, the electronic application may encourage more employees to do so. While courts will likely not accept time records that are inconsistent and anecdotal, a regularly used application paired with credible employee testimony will strengthen an employee’s case.

Before allowing employees to telecommute, employers should conduct an internal audit of exempt and non-exempt positions. Since the employee’s burden to prove hours worked in FLSA litigation is easy to meet, a proactive approach by the employer is the best way to ensure appropriate records are kept.

Employers should also investigate the “homeworker exception” of the FLSA, addressed in 29 C.F.R. § 785.23, by consulting legal counsel. This exception accounts for the difficulty of tracking hours worked for telecommuting employees and stipulates that the parties may form a reasonable agreement regarding tracking hours worked at home. Such agreements should be carefully drafted with legal counsel.

While telecommuting programs are often desirable arrangements for both employers and employees, such programs should be carefully evaluated given the implications under the FLSA. Until more guidance regarding telecommuting situations is provided by the DOL, employers should proceed with caution.

Interfering with Employee Speech

The dramatic increase in social media as a communications tool has been nothing short of phenomenal Facebook for example, has more than 600 million users.

According to a recent Deloitte survey, one-third (33 percent) of employees never consider what their boss or colleagues would think before posting online and more than half (53 percent) do not believe that their social-networking pages are their employer's business.

To continue...

Read "Interfering with Employee Speech" (Human Resource Executive Online)