Today is the day that Marty McFly traveled to in Back to the Future II. While we may not have hoverboards or cars that fly, we do have a lot of the technology that was featured in the movie. Ordering a meal via computer (without a waiter or waitress), check. Video conferencing, check.
Even without hoverboards or self-lacing sneakers, technology has had major advances over the past 30 years. Unfortunately for employers, the laws that deal with it have not kept up. One place where this is most problematic is with smart phones and employees having 24-hour access to work e-mail. Under the Fair Labor Standards Act, when an employee checks their work e-mail from home, he/she is technically “working” under the law. A non-exempt employee must be compensated for this time. What is most troubling is the difficulty in tracking these hours for employers. Most employees simply ignore this 5 or 10 minutes a day and never request payment for it, and their employers may or may not know that e-mail was even checked.
If the Department of Labor decides to conduct an audit of your company, they will ask employees if they have access to work e-mail outside of work. If the answer is yes, the next questions will be how often the employee checks it and how much time they spend responding. If this one employee claims to spend 10 minutes a day on this, that is over an hour of pay (normally at overtime rate if the employee has already worked their 40 hours that week), and the employer will have almost no way to refute the employee’s estimate of time spent. In a year, that is over 60 hours of overtime. In its audit, the Department of Labor can look back two years (three years for a willful violation). In this scenario, an employee who makes just $12/hour would be entitled to $2,160 for a non-willful violation. If a company has 10 such employees, it is looking at a cost of over $20,000! And that’s just for a few minutes of checking e-mail that the employer probably never knew was compensable.
In response to this potential exposure, many companies are denying smart-phone access to work e-mail for non-exempt employees. Another option would be to inform employees via a clear, written policy that they are not to review e-mails outside of work hours (although if the employees ignore this directive, they would still be entitled to pay despite the employer’s instructions). The bottom line is that allowing non-exempt employees access to e-mail outside of work opens the employer to potential exposure.
Now, we’ll still have to see if Back to the Future’s prediction for the Cubs to win the World Series will come true, although that one isn’t looking too good at the moment.
For more information regarding these issues and/or any other labor and employment law matter, please do not hesitate to contact a member of our Labor and Employment Department:George Hlavac, Steve Hoffman, Jeff Stewart, Ed Easterly, or John Buckley.