Hello, and welcome to LegalEase. Today I want to talk about after-hours emails and text messages and the pay required.

Employers, it is common for employees to be lured to check emails and text messages after-hours, especially when they hear that “ping.” However, it’s important for employers to understand that all time spent working must be paid. Checking after-hours emails and text messages is not an issue for your exempt employees because your exempt employees are exempt from wage and hour laws. However, it can be a nightmare for your nonexempt employees who are required to be paid hourly plus overtime.

The Fair Labor Standards Act requires that employers pay for all time spent working, even if the employer does not request the work to be done. As employers, you allow the work to be done, right? You casually know that it’s being done. Since you allow it, you have to pay for it.

Tracking the time spent by nonexempt employees checking text messages and emails can create a housekeeping nightmare. You can also run the risk of improperly reporting wages and being subjected to wage and hour claims.

So, what can you do?  You need some kind of tracking system. The tracking system can be self-reporting, or maybe your emails can capture the times that messages are sent and received.  However, there’s still a risk with this approach.

The best approach at this point is to create a policy that addresses after-hours work. You must tell nonexempt employees they are not allowed to work after-hours. Otherwise, it’s a nightmare and you can’t track it. Somone will claim that they are entitled to overtime because of all the after-hours work, and you will be subjected to a wage and hour claim.

So, a good policy that addresses after-hours work should say:

• Nonexempt employees cannot work after-hours; and  
• All work time must be recorded.

How can the policy be implemented. It sounds good on paper, but how do you implement it?

• Train managers and supervisors to discipline employees when they don’t record time.

The first time you have someone come to you and say, “Hey, I didn’t record my time, but I worked after-hours on Friday, or I worked longer on Thursday,” that employee must be disciplined.  Write -up the employee because that employee is subjecting you to a potential wage and hour claim.

• Restrict access to emails after hours. Most employers have a server that requires employees to login.  Restrict after-hours access to emails and text messages.
• Avoid giving electronic devices to nonexempt employees or require nonexempt employees to leave electronic devices on site after they sign out for the day.

There are many steps you can take as an employer to try to  prevent wage and hour claims.

Our society has become so “loosey goosey” when it comes to checking email and text messages after hours, but employers are getting in trouble. The Department of Labor will audit you and require backpay to these employees.

I hope this was helpful. Thank you for joining LegalEase. You can always go to our website to schedule a consultation. Our link is always in the bio close.