The pandemic changed the way people work. As offices closed, employees set up home offices and learned about this new thing called Zoom. The phrase “work-life” balance took on new meaning as employees now worked where they live and found themselves responding to messages around the clock.
Now, it looks like some employers will be facing consequences for communicating with employees after hours.
Multiple lawsuits under state and federal wage and hour laws are shining a light on the issue of overtime pay for non-exempt employees who respond to e-mails, text messages, and voicemails after work hours. These lawsuits allege that employers required non-exempt employees to respond to such communications after hours but did not instruct them to record the time on their timesheets.
A Look at Overtime Laws
The Fair Labor Standards Act (FLSA) mandates that employers pay non-exempt employees for all overtime they work. This includes time spent responding to e-mails, texts, and voicemails.
Even a brief text asking a “quick question” could be problematic as it might cause an employee to perform additional work. Employers could also be on the hook if they require employees to be on “standby” as they wait for the next message. Generally speaking, if workers cannot go about their daily business, they are entitled to pay for time spent waiting.
The Department of Labor has made it clear that companies must pay non-exempt employees for their work even if the company did not ask them to perform it. The bottom line is that employers that send or receive electronic communications or calls to employees after hours are responsible for paying overtime. It does not matter if the communication violates a company policy prohibiting employees from working overtime or if an employee failed to record the overtime.
It is assumed that employers know about the overtime because they either received or sent the communication.
Sometimes, the employer may not initiate or receive the communication but may benefit from it. For example, if a non-exempt employee places an order after hours that the employer will fulfill, the employer has constructive knowledge of the overtime and must pay it. But, again, it does not matter whether the employee submitted the overtime spent on the task.
Look for Upcoming Bans on After-Hours Communications
Currently, the United States does not have laws prohibiting companies from contacting employees after work hours. However, employment experts expect that to change.
In countries like Portugal and France, employers can be penalized for contacting employees after the work day is done. In New York City, pending legislation would make it illegal to require employees to respond to work communications after work hours.
In a recent survey, almost 70% of American workers reported that their employer contacts them outside of regular work hours at least once per week.
Best Practices for Employers
Employers should refrain from sending messages after work hours, and they should have detailed, unambiguous policies that deal with after-hour communications. When employees have communication tools that allow them to work around the clock, more than a blanket prohibition on all after-hours work is needed.
In addition, employers should send regular company policy reminders to avoid expensive unapproved work.
These actions can help keep your company out of legal hot water, and they can go a long way toward creating a work environment that benefits everyone.
The employment attorneys at KingSpry are monitoring this area of the law and will report on new developments. We expect to see a crackdown on after-hours work communications in the near future.
In the meantime, your company’s legal team can help you create a legally sound work policy. If you have questions or need help, please reach out to one of our employment attorneys.
