The Fair Labor Standards Act (“FLSA”) dictates when employees must be paid for cell phone use outside of work hours.
The FLSA classifies employees as either “exempt” or “non-exempt.” Exempt employees generally do not receive overtime for hours worked in excess of 40 hours per week.
Non-exempt employees generally must be compensated for all hours they work and must be paid overtime for time worked in excess of 40 hours per week. If non-exempt employess work in excess of 40 hours per week, each hour “suffered or permitted” to work must be paid at 1½ times the employee’s hourly rate.
If an employer requires non-exempt employees to perform work functions outside of work, such as responding to phone calls, emails, or text messages, that time must be compensated. But what about the scenario where performing those work functions outside of work is not required but instead is permitted by the employer? That time must also be compensated under the FLSA. Time that a non-exempt employee is “suffered or permitted” to work must be compensated. The FLSA requires compensation even where the employer simply had reason to believe work was being performed after-hours.
To understand the forgoing, it is helpful to consider some hypothetical examples.
Hypothetical Example Number 1
A non-exempt secretary must edit a set of reports for the supervisor. Those reports are due the next day before the secretary’s shift begins. The supervisor emails the reports to the secretary after-hours with the expectation that the edits are completed outside of work hours.
Should the secretary’s time be compensated? Yes. The supervisor required the secretary to respond to an email and perform work after-hours.
Hypothetical Example Number 2
A non-exempt secretary must update customer contact lists, which requires the secretary to contact each customer by phone, email or text to verify the customer’s information. The project is too large to complete in one day at the office, so the secretary takes it home and makes customer contacts from home. The next day the supervisor notices that the customer contact information was fully updated and knows that it was too large of a project to complete at the office. The supervisor does not ask the employee if the work was completed outside of work hours.
Should the secretary’s time be compensated? Yes. The supervisor had reason to believe work was being performed after-hours.
While the United States Supreme Court has stated that employers are not required to pay for de minimus after-hours work, generally less than 10 minutes, the work performed outside of work hours is viewed collectively and not on a per-email or per-text basis. If an employer has reason to believe that employees are receiving and sending multiple emails each day outside work hours, that time should be compensated.
An employer’s failure to pay overtime can be financially devastating. A single employee may recover back wages, liquidated damages, attorneys’ fees, and costs for an employer’s violation of the FLSA. Where the employer’s policies deprive a group of employees of compensation due, the FLSA allows for collective actions by the entire group.
If after-hours phone calls, emails, or text messages are a concern for you, Attorney Andrea B. Niesen is available for consultation and will help you evaluate your situation. Attorney Niesen is an experienced employment law attorney and can also help you make sense of the recent changes to the FLSA that could impact your employment.