by Michael Kun
The workplace used to be a lot easier to manage. That’s because the workplace used to be, well, the workplace.
Employees went to work, they worked, and they went home. And when they went home, they were usually done working for the day, unless they got an emergency phone call from the boss.
There was the workplace, and there was home, and (with those rare exceptions) never the twain shall meet.
For better or worse, those days are long gone.
First, there was the answering machine at home.
Then, the cellphone.
Now, few are those employees who do not have a device connecting them to work in their shirt pockets or their purses. I’m speaking, of course, about smartphones.
A great many employees, particularly those in engaged in non-manual labor, have workplace email addresses.
And, more and more, employers allow their employees to send and receive emails from their workplace email addresses through their smartphones.
And, more and more, employees are sending and receiving emails after-hours on those smartphones.
As employment lawyers, we have long warned clients and prospective clients that it was only a matter of time before non-exempt employees – and their lawyers – started filing suits contending that they were entitled to be paid for the additional time they spent after-hours reviewing and responding to work-related emails. And, whenever those lawsuits would be filed, we anticipated that they would be filed as class actions or collective actions.
Well, that day apparently has come.
Although there have been more than a few lawsuits filed over the years alleging that non-exempt employees were entitled to be paid for the time spent “off the clock” dealing with work-related emails, those claims are more prevalent now than ever.
Perhaps recognizing that the time spent on after-hours emails might be sporadic or that it might be only a few minutes on many occasions – which would create an argument that such time is non-compensable, de minimis time – employees and their attorneys are not simply filing suit over email time. Instead, they are filing suit over all alleged “off the clock” time, including not only time spent on emails, but also time spent booting up computers at the beginning of the day and shutting them down at the end, as well as other, similar activities.
Checking emails after hours may only take 5 or 6 minutes a day, they argue, but when you add it to the other “off the clock” time, it is significant. And, they argue, they are entitled to be paid for all of that time.
Fifteen minutes a day, they argue, adds up for one employee. Multiply it by an entire workforce, and the potential exposure could be significant.
There are a number of ways employers can address this phenomenon:
(1) Employers can reassess their needs and determine whether it would be wise to prevent employees from receiving work-related emails anywhere other than at work. In other words, they can determine whether to prevent employees from even accessing emails to and from their work email addresses on their smartphones (or on their home computers, laptops or tablets). If there is an emergency after hours, you can contact them the old-fashioned way – pick up the phone and call them.
(2) Should employers decide not to cut off email access outside of the workplace, they – and management employees in particular – can address how often and under what circumstances they send emails to employees after hours. When you send an email to an employee at 10:00 pm, you may well intend that he or she not look at it until the morning. But you know your employees are likely to do the same thing you do when their smartphones buzz to let them know they have received new emails – they are going to check. Yes, that may be a reflex. But the employee will not know if it is an emergency until he or she opens your email.
(3) If employers are not going to cut off access to emails, they should consider revising their time reporting systems to allow employees to report time spent dealing with after-hours emails. At the very least, that would help to cut off exposure on an “off the clock” claim. And should employees report significant time spent after hours engaged in such conduct, the employer can then reconsider (1) and (2).