women in bed with phone

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Betty’s at the dinner table with family, talking about her day, savoring her mashed potatoes when . . . flash—the phone lights up. Work e-mail. She reads it, steps away from the table, and starts drafting a response. Fifteen minutes later, she fires it off and returns to the dinner table.

Same evening. Betty’s getting ready for bed. She cracks her book open, trying to wind down for the night when . . . flash. Again, the phone lights up. Work e-mail. It could wait until tomorrow but she’d rather get a head start (and show her boss just how diligent she is). She thinks about the proper response, cranks out another e-mail, and shoots it off. Fifteen more minutes.

It is now early morning. The alarm rings, she hits snooze and (like many of us) reaches for her closest bedside companion . . . Mr. Smartphone. And . . . you guessed it. Another work e-mail. Her morning is stacked so she wants to clear up her to do list. This time, she quickly disposes of the message with a five-minute reply.

For many of you, the hypothetical situation above probably looks more like reality. Technology has consistently blurred the line of demarcation separating work and non-work time. This has, in turn, made it increasingly difficult to accurately account for compensable time—which, under the Fair Labor Standards Act (FLSA), includes work “permitted” by the employer.

So, what’s the problem? Well, it depends on which employees we are discussing.

For some positions (especially those that clearly fall within one of the FLSA’s overtime exemptions), there is not much of a problem. For the remaining universe of employees—a universe that is set to expand significantly with anticipated changes to DOL rules that would reduce the number of employees now deemed exempt (view our recent Webinar for more information on this)—however, there are some serious issues to consider.

While employers are generally not required to compensate employees for work time the employer did not request and of which it was not aware, employers are often hard pressed to argue that it did not know of (or permit) work conducted on its own e-mail system.

Furthermore, a recent decision involving a class action lawsuit by City of Chicago police officers for alleged unpaid overtime associated with off-duty work demonstrates that an employer can be the loser despite ultimately prevailing at trial. In the matter of Allen v. City of Chicago, Case No. 10C3183 (N. D. Illinois), over fifty officers in the Bureau of Organized Crime alleged that they were expected to respond to calls and messages on their City-issued BlackBerry devices even when they were off-duty. The City, according to the officers, had an “unwritten policy” prohibiting the officers from seeking payment for the off-duty work.

While the court determined that the officers in question had been rendering some compensable off-duty work, the City managed to escape liability based on the fact that it maintained “an established process for seeking and receiving overtime compensation.” In reaching this decision, which was entered on December 10, 2015, the Illinois federal court borrowed from Sixth Circuit law stating that “under the FLSA, if an employer established a reasonable process for an employee to report uncompensated work time, the employer is not liable for non-payment if the employee fails to follow the established process.” See White v. Baptist Mem. Health Care. Corp., 699 F. 3d 869 (6th Cir. 2012).

Many jurisdictions (including the 11th Circuit) however, have not clearly implemented this type of defense. In addition, while the City of Chicago prevailed in the lawsuit, it spent more than 5 ½ years litigating the issue and—according to an article by the Chicago Tribune—spent in excess of half a million dollars in its own attorneys’ fees. Importantly, much of the dispute concerned the interpretation of various policies the court mentioned could have been easily clarified by proper policy training.

The following are some recommendations to help reduce exposure to a wage and hour lawsuit involving after-hour work using the Company’s e-mail system:

  • Consider denying after-hour e-mail access to non-exempt employees who really do not have a need to such access;
  • Alternatively, consider deactivating access to the e-mail system during non-work hours for non-exempt employees;
  • If you grant non-exempt employees after-hour access to the e-mail system, have a clearly defined policy for such employees to report the time worked;
  • Delineate exactly when employees are expected to attend to after-hour issues and when employees are prohibited from performing any work after clocking out; and
  • Reanalyze whether employees with after-hour e-mail access are truly exempt (before the anticipated rule changes become effective).

It is not that long ago that smartphones were typically limited to executives and other professionals. Now, it appears that every American adult is a smartphone owner. Technology is evolving . . . and so is the law concerning the compensability of after-hour work. Now is the time to make sure you are not e-mailing yourself into a lawsuit.