Ukrainian Law Blog: The Elephant in the Corner … Do You Have to Pay Employees for Checking Work Email?

on March 2, 2016

Posted in Employment Litigation, Employment Policies

Connectivity is addictive. Managers text and email staff 24/7; workers check their phones incessantly 24/7. How often?

Okay, here are the actual numbers from a recent Gallup poll: 11% check it every few minutes; 41% a few times an hour; and 20% of Americans claim once an hour. If you haven’t checked in last 60 minutes, you’ve probably taken a vow of some sort.

So what? The key “what” is that checking email could be work time for nonexempt employees, which is time that must be paid. In the eyes of state and federal wage and hour law, answering a work email from the couch on Saturday or from a bar on Tuesday night is no different than from the office on Monday.

In 2014, the U.S. Department of Labor requested submissions regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours” as a prelude to rule-making under the Fair Labor Standards Act. But, to date, it has done nothing (perhaps being too busy swiping right or left on their devices?).

The basic legal rule comes from another century: employers must be paid for all time when the employer knows or should know that an employee is working. Working at home then was often “unknowable” but not so today. Technology makes the clues pretty hard to miss with forensic information on mobile devices and company servers.

Case law is suggestive on how easy it is for such problems to arise.

Mike Rutti was employed by Lojack as one of its over 450 nationwide technicians who install and repair vehicle recovery systems in vehicles. He had no office; he went from home to his first call and went home after his last call. Every morning, Rutti received his daily assignments electronically and then mapped his routes to the assignments before leaving home. During the day, Rutti recorded information about the installations he performed on a portable data terminal (“PDT”) provided by Lojack. After he returned home in the evening, Rutti was required to upload data to the company. The transmissions had to be done at home because it required the use of the modem provided by Lojack.

The court said the pre-work activities were not compensable. They were no different than planning an ordinary commute to a job site. But in contrast, the post-work ritual was compensable if not de minimis; the Ninth Circuit remanded the for further findings on that score. Rutti v. Lojack, 578 F.3d 1084, 1086-87 (9th Cir 2009).

Brief emails and texts after hours: No problem you’re thinking; it’s de minimus. If you are starting to feel good

, stop. The de minimis doctrine has since run into some high-level criticism. Sandifer v. United States Steel, 134 S.Ct. 870, 873 (2014) (“[a] de minimis doctrine does not fit comfortably within the [FLSA], which, it can fairly be said, is all about trifles….”)

. There are better ways to secure your company’s safety than ignoring the problem. Let’s look at a helpful example out of Chicago.

Jeffrey Allen was a member of the Chicago Police Department’s prestigious Bureau of Organized Crime. Allen went to court over off-duty emails, alleging on behalf of a class of 51 other employees, that his squad was expected to answer his department-issued BlackBerry on nights, weekends, and even holidays like Thanksgiving. Allen v. City of Chicago, No. 10 C 3183, 2015 WL 8493996, at *7 (N.D. Ill. Dec. 10, 2015).

The case hinged on whether the Chicago Police Department had an “unwritten policy” that kept cops from filing for overtime pay for off-duty work on their BlackBerrys. Several officers who testified did submit time-due slips for BlackBerry work done off-duty and were paid for it; no cop was ever told they shouldn’t. In addition, the evidence showed supervisors didn’t always know when officers were working off-duty on their BlackBerrys or that they were not filing overtime slips for that work.

Time for the happy dancing emoticon as your forward this post to your colleagues? Yes. The Chicago Police Department got this right. Every employer needs to have a policy that both requires employees to report off-hours work, and provides them with the ability to do so. White v. Baptist Memorial Health Care Corp., 699 F.3d 869 (6th Cir. 2012) (affirming summary judgment for employer because plaintiff failed to report time in exception logs; “[i]f an employer establishes 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”); Gaines v. K-Five Construction Corp., 2014 WL 28601, at *13 (7th Cir. 2014) (affirming summary judgment for employer; driver’s claims for pay for arriving early to perform pre-driving inspections insufficient where driver failed to properly fill out forms to report extra time to payroll).

This, of course, means that managers need guidance that all time reported is to be paid: no editing, no haranguing, etc. The solution for employees who are “stealing time” is termination, not paycheck reduction measures. Here, moreover, smartphones can be as much a part of the solution as the problem—permitting employees to submit off-hours time by email, electronic calendar, or even mobile time-keeping app can turn the smartphone into an ally.

But, Chicago does not have a monopoly on solutions. In Germany (but not in the US), Volkswagen reconfigured its company servers to cut off corporate email between 6:15 p.m. and 7 a.m. for 4,000 employees based in Germany. This completely eliminates the possibility off-hour emails, but does not stop phone calls or texts when there is a genuine emergency business need.

An elephant in the room is a thorny issue everyone knows about but doesn’t want to address. An elephant in the corner is different. People see it, and even talk about. But no one knows what to do about it or takes responsibility for it. Don’t let off-the-clock be your elephant in the corner.

Especially when getting him out of there can be easy.