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That 24/7 Workplace Could Cost Time-and-a-Half

by
John Zappe
Jun 23, 2011, 11:05 pm ET

Several years ago, as I was preparing to head off for a long weekend hiking in the Yosemite backcountry, I got a call from the CEO.

“Why won’t you be reachable?” he wanted to know.  He just read the email about my being out of touch with the office.

Because, I started to explain, there are no cell towers or service in the middle of the wilderness. He cut me off with a curt, “Maybe you should vacation somewhere else.”

An isolated incident? Not anymore. Today, says a Manpower survey, nearly two-thirds of the responding workers at least sometimes get emails in their off-hours from bosses who expect a reply.

“It’s now taken for granted that everyone has to check their work email during the weekend,” says Monika Morrow, SVP for Manpower’s Right Management unit.

That’s most true for exempt workers, who likely made up the bulk of the 569 survey respondents. Non-exempt workers, however, have to be paid. Maybe not for every contact, but, as we’ll see in a moment, more often than not.

For exempt workers, it’s pretty much black and white. Employment lawyers agree that for those salaried people, after-hours contacts just go with the job.

Anthony Oncidi

“It’s not a wage and hour issue” if the employee is exempt, says Anthony Oncidi, head of the California Labor & Employment Law Group at Proskauer Rose in Los Angeles. “They do the work or they can choose to leave.”

For non-exempt workers though, “it’s very much an issue we are beginning to see percolate through the courts.”

The U.S. Fair Labor Standards Act and state labor rules require employers to pay non-exempt workers for after-hours work that goes beyond minor, almost negligible amounts. Responding to a supervisor’s call about where a certain file might be, or if a bill was paid might be considered de minimus and not compensable if the time involved was trivial. Historically, such time slices weren’t easily measured and were too small to be worth the effort. The rule of thumb was less than 10 minutes.

Now, though, digital devices easily record and track messages and online time. As Oncidi notes, “it is no longer a swearing contest.” And companies that previously issued BlackBerries to only certain employees now are distributing them widely.

In Chicago, a police sergeant brought a class action suit for overtime pay because he and others were required to check and respond to messages on their department issued devices while off duty. The case is awaiting trial. A similar sort of case was brought by an ATT worker in California. The case was dismissed last year.

It will only be a matter of time before one of the cases reaches an appeals court, which will have to wrestle with the de minimus issue.

Todd Fredrickson

Attorney Todd Fredrickson, managing partner in the Denver office of labor firm Fisher & Phillips, says his rule of thumb for duration is five minutes. But things get fuzzy in situations where, say, there are multiple emails each of which may entail only a few moments.

What he’s telling his employer clients is “if you don’t want to pay for it, don’t let it happen.”

“This is a hot one for collective action,” he cautions.

Under the FLSA a successful plaintiff collects the back overtime, plus “liquidated damages” equal to the amount of back pay, and the employer pays attorney fees. And the FSLA provides for class actions, but the employees must opt-in. However, that’s not a major hurdle, so employers shouldn’t take much comfort in that.

What they should do, says Oncidi, is to reexamine who gets electronic devices, and make clear what the overtime policy is — to the rank and file as well as to managers.

“Don’t just let these things go on,” he says. Companies need to be “having a specific consciousness about these things.” Even unauthorized overtime has to be paid if the company “permits or suffers the employee to work. That’s what the language says,” explains Oncidi. Even if the policy says no overtime unless authorized, if the circumstances implicitly mean work is to be done but no express authorization is included, it has to be paid.

His example: An executive on an overseas trip who emails his non-exempt assistant who is off the clock to rebook a flight and rearrange the itinerary has implicitly authorized the overtime.

While exempt workers have no legal rights to a 40-hour work week, it doesn’t mean there aren’t consequences for an employer.

In California, even exempt employees are entitled to a real vacation. Text, call, or email an exempt vacationing employee and if they do work, the law forbids you from counting it as a vacation day.

Even so, Right Management’s Morrow points out that employers shouldn’t expect everyone to be “on” 24/7. “If this is everyday, you can’t sustain it,” she says. Tired workers lose focus and productivity is hurt. Turnover goes up and the company employment brand is hurt.

“The 24/7 workplace is here to stay. But workers need a break. They need downtime to decompress.”

Workers regularly swamped by after-hours emails, texts, or calls should raise the issue with the boss. Rather than complain, she suggests inquiring, counseling employees to, “Talk to them about their expectations about the emails. What do they expect in the way of a response.”

Some bosses will just fire off an idea, a project, a reminder as they think of it and not expect an immediate response.

Morrow has one other suggestion: take an electronics-free weekend. Let everyone know that you’ll be unavailable all weekend.

And hope that unlike my boss, yours will understand.

head of the California Labor & Employment Law Group at Proskauer in Los Angeles

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

  1. Bill Gallop

    First… let me say I am NOT a union man. If fact, I have owned my own business in the past… but this has to stop.

    Any boss who came to me and asked “Why won’t you be reachable” or why I did not answer an email over the weekend would lose all respect I had for them as individuals.

    Weekends or time off is needed by all human beings. Its a time to relax, take care of themselves and their families.

    My advice… if you ever get a job like that… Time to start looking for a new job!

  2. Darryl Clements

    In today’s “Do More With Less” culture, companies and leaders have become dependent on 24/7 access to employees. It’s only reasonable that they should expect to compensate employees for that additional work time.

    But, as pointed out, some times even additional pay isn’t worthwhile. Employees understand responding to critical items or occasional interruptions of personal time. However, 24/7 access quickly and easily becomes a point of resentment when it’s overused. The problem is just what is “overused.” For some, it’s any time. For others, it’s tolerable up to a certain amount of time each day or week. For others, they don’t mind until it conflicts with a personal must event or situation.

    The compensation will be the easiest part of this to address. Tracking is so much easier with today’s tools and resources.

    But consider this – ever had your boss call you during a funeral of a close relative or friend or during a medical emergency just to ask about some non-critical business project or a status update? Trust me, it happens. That’s why individuals want this issue addressed.

    Here’s the real head-scratching twist – the same bosses who invade their direct reports’ personal time are often the very same bosses who aren’t so easy to reach.

    Many employees would prefer to take the approach of not contacting or being contacted during personal time unless an absolute emergency. Unless you’re directly involved in something that will substantially hamper/stop operations or are a part of critical safety and security escalation (and very often this is not what employees react negatively to), the reason for a lot of this extra contact is simple lack of trust and/or self-control at the individual level.

  3. Carolyn McGee

    It goes both ways!

    One of my employees called me when i was at a family funeral and insisted that I answer her question immediately about the leave accounting on the paycheck she received the week before — clearly not a critical or time sensitive issue.

  4. Daniel Hydrick

    As a 25 yr Executive Recruiter I knew this day would come. It started for my firm about 18 months ago. I was called by a candidate asking me to move her. The reason, 24/7 work schedule. It seems her boss was concerned over her “opting out” for certain times for personnel reasons after work and on weekends. I was asked by a client’s board of directors to help them determine the amount of hours someone should work based upon their pay grade. My response, “Define work hours”. Their criteria; normal hours to included accessibly by cell or “at least” email when ever needed and did not think that this was to much to ask. I then asked “When would be the best times; On the way home from work, on the way in to work, dinner time, before going to bed, when you get up, time spent with children, vacations….you get my point. 24/7 access needs to be addressed up front. We want to please, we are good workers, we know the responsibilities. I am the CEO of my firm, it is my choice to be that person, however, my employees are also kind and considerate of my off time. Employers MUST do the same. Establish bounders, discuss with you people what is and isn’t appropriate. As humans we need the time to rest; neglect your car and it will “break down”.
    Dan Hydrick, CEO
    http://www.hygun.com

  5. Keith Halperin

    In today’s job market (which is unlikely to change for several years), employers can pretty much ask and get whatever they want from employees- who can “like it or lump it”.

    -kh

  6. Daniel Hydrick

    Keith: Ouch! I am sorry “Like it or lump it”! Where do you work? Does your boss pay for your cell phone, email account, computer? If so, did you understand the reasoning behind the equipment. No one need to “like it or lump it”. Bosses do understand and if they don’t they will. I can’t recruit “happy”, “healthy” people out of companies. I CAN and DO recruit those that have to “like it or lump it”, even in this economy. Life has a price and work has a place. Good luck. Dan Hydrick

  7. Todd Raphael

    Keith, not from what I’ve been noticing. I don’t have scientific data, just talking to lots of people, and a number of people I know (mostly working mothers), or know of, have either switched jobs over the past year, or are close to it, because their employers think they now own people’s time any time of day, night, and weekend, expecting return emails or calls at most any time, while being only marginally flexible during traditional work hours.

  8. Keith Halperin

    @Dan, Todd: I may have used the wrong expression. I should have said “my way or the highway”. In both your responses, it seems these folks took “the highway”. I doubt that the employers had trouble filling the open slots with folks who were willing to be on call whenever required. Imagine the incredible attracting power of a company saying: “And by the way, we won’t call you after usual work hours or weekends. We have lives, and so do you- we respect that.”…. That’s another thing (like multi-year, “no-lay-off-without-cause” employment contracts) that could be used, but probably won’t because it makes employers give up too much power, and power rocks!

    Happy Friday, Folks!

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