By Joanna Vilos
We all know the lure of the ping that alerts us to an incoming email or text message. It’s difficult not to check it, even if we are not required to do so. So what’s the harm if your non-exempt employees voluntarily check their work emails and messages outside of their normal work hours? They are just being ambitious and responsive team players, right?
Wrong. When non-exempt employees monitor, read and respond to company emails during off hours, and you permit it, those employees are engaged in compensable work. Tracking and paying for such time can create real headaches for your payroll department.
Under the Fair Labor Standards Act (FLSA), you’re required to pay non-exempt employees for all time spent working. Even work that is not requested but is “suffered or permitted” to be performed is work time that must be paid for by the employer. Consequently, even if employees volunteer to check in or continue work after the end of their shift, the time spent doing work-related tasks is compensable.
With emails and texts, it’s relatively easy to know that employees are working during off-duty time periods due to the time stamps that appear on each message. If you allow workers to engage in such work, you are obligated to pay for their time. If that additional time pushes the employee over 40 hours for the week, you have to pay overtime for hours beyond the first 40. And, if you are in a state that has a daily overtime requirement, you’ll have to pay overtime if the additional work time pushes the employee over that daily threshold.
Tracking Sporadic Work Time
But how do you know how much time each employee spends checking and responding to company emails and texts? That is a real problem. If you choose to permit this off-duty work by non-exempt employees, you will need to put in place some kind of time-reporting mechanism to log that time. Perhaps your email system can capture when each employee logs in and logs out. Or perhaps you implement a self-reporting timekeeping procedure. Whatever system you put into place, there is still the risk of unaccountability and potential inaccurate reporting which can lead to pay errors and ultimately, wage claims. It can also result in virtually unlimited overtime pay for those really “ambitious” non-exempt employees who stay logged into your system for hours at a time.
Implement A Policy To Address Work Outside of Normal Hours
To help eliminate these risks, adopt a policy to address work hours for non-exempt employees and any work performed outside of that normal work schedule. First, the policy should prohibit non-exempt employees from engaging in any off-the-clock work, meaning work that the employee does not log as work time. Reiterate that all work time must be recorded and will be paid.
Then, if you don’t want non-exempt employees performing any work-related duties outside of their normal work schedule, make sure your policy explicitly prohibits that. Give examples stating that checking and responding to company emails, text messages and phone calls during off hours is specifically prohibited.
Train your employees and supervisors on this policy. If an employee fails to comply with the policy, enforce it by imposing discipline. But remember that you cannot withhold pay as a consequence of the policy violation.
Restrict Access To Company Email and Phones
Another way to reduce the payroll headaches associated with after-hours work is to restrict non-exempt employees from having access to your company systems outside of the office or workplace. Consider eliminating remote access to your email system for non-exempt employees. You may also decide not to provide electronic devices, such as cell phones, laptops or tablets, to non-exempt employees so there is little opportunity for those employees to engage in job-related duties outside of the workplace. Make sure that supervisors don’t circumvent your efforts by using employees’ personal email addresses and phone numbers to contact employees about work outside of normal work hours.
The bottom line is that if you allow any work to be done, you must pay the employee for it. If you don’t want to allow any work outside of an employee’s normal work schedule, implement a policy that is consistently enforced and backed up with disciplinary actions, and restrict remote access by non-exempt employees to company systems. Heading off the pay issues in advance will go a long way in eliminating payroll headaches down the road.