Should hourly workers be paid for answering work emails and calls when they're off-the-clock?
It is becoming a popular question in the time of Blackberrys, iPhones, smart phones, pda's, cameras that connect online, and cars that talk. Especially in light of recent lawsuits brought by hourly employees against employers for not compensating for time spent answering and responding to calls, emails, and texts on company-provided cell phones.
As a small business employer, here are the top 5 things you should know about federal law provisions for overtime:
1. FLSA is a one four-letter word that belongs in the workplace. The Fair Labor Standards Act (FLSA) is the federal law that establishes minimum wage, overtime pay, recordkeeping, and child labor standards for full-time and contract-based workers in both private and government sectors.
2. Off-the-clock doesn't mean off-payroll. FLSA requires that non-exempt employees to be paid for work completed off the clock, even if the work was voluntary. The law, enacted in 1938, likely didn't envision the complexity of communication and the greying of the 'workday'. Additionally, during the current economic downturn, companies and employees are finding themselves strapped to do more work with fewer hands.
3. 1.5 is an important multiplier. The rate of overtime is one-and-a-half times the employee's regular rate of pay. Overtime must be paid for hours worked beyond 40 hours in a workweek. It must be paid in wages and not in equivalent time off or goods.
4. Don't forget about state law. FLSA is federal law governing overtime provisions; however, various states also have overtime laws. Where an employee is subject to both state and federal law, the wage dictating the higher wage amount trumps.
5. Cell phones and overtime pay. Officially, the jury is still out on whether employers are required to pay hourly workers for responding to calls and messages outside of their workday; however, if we look to past cases, there is precedence for this kind of compensation. Courts have interpreted FLSA to require police officers and other workers to be compensated for time taken to wear and remove uniforms---so these technology-driven claims for overtime are not out of left field.
It may be beneficial to establish an understanding about cell phone use outside of work hours, and perhaps even set caps on how much time a worker should spend on work messages once they've clocked out.