NEW YORK — A recent article from the Wall Street Journal titled “Can you Sue the Boss for Making You Answer Late-Night Email?” has highlighted the issue of the graying line between work hours and non-work hours. The article indicated that several lawsuits have alleged that companies expect employees to work unpaid and off-hours via smartphones and other digital devices in violation of the Fair Labor Standards Act (FLSA) and state labor laws. The article cited a survey from the Pew Research Center which indicated that 35% of employees surveyed said that digital technology increased the number of hours they worked.
An Increasingly-Accessible Workforce
In a 2006 study by the Massachusetts Institute of Technology, researchers found that many employees checked their work emails every eight minutes – even on nights and weekends. In fact, 25% of employees apparently stayed in touch with their offices via smartphones when they were supposedly on vacation. In many workplaces, this accessibility has led employers to impose additional requirements. 22% of employed email users are expected to check their work emails after hours. When an employer issues a Blackberry or some other type of smartphone to an employee, 47% of such employees are then required to respond to work emails on nights and weekends, and 70% are required to respond to after-hours phone calls.
If an employee is not exempt from overtime under FLSA, he or she is generally entitled to premium overtime pay for work performed in excess of forty hours a week. However, FLSA does not require employers to pay their employees for small amounts of time that are insubstantial or insignificant. This is called the de minimis exception, under which overtime pay is only available when the after-hours work requires the employee to give up a substantial measure of his time and effort, and not if it only involves a few seconds or minutes.
In considering whether a non-exempt employee is entitled to overtime for electronic work done after-hours, courts will first consider the practical administrative difficulty of recording the additional time. An employee might only spend a few minutes answering a phone call or responding to an email. This time is likely to vary among employees, and it may be administratively difficult for employers to monitor and record smartphone use or the use of other technology.
Next, courts will consider the aggregate amount of compensable time. Although there is no magic number that qualifies as de minimis time, it will matter how much time the employee spends answering after-hours phone calls and emails. For example, while a five-minute phone call by itself is likely not enough for overtime compensation, an employee that receives a five-minute phone call every day after-hours might have a valid claim for overtime.
If you or someone you know is not being paid overtime as required by FLSA for answering after-hours phone calls or emails, you should call (855) 754-2795 or complete the Free Unpaid Overtime Case Review form on the top right of this page. Our top-rated team of wage lawyers will evaluate your situation to determine your best course of action. We will also determine if it is in your best interest to file a lawsuit against your employer. There are strict time limitations for filing so it is important that you call our experienced attorneys today.