I ANSWERED MY EMAIL AFTER WORK, NOW PAY ME!
Many companies provide their employees with 24-hour access to email, whether through remote access to company servers, iPhones, Blackberries, or other smartphones. Other companies have employees that use personal email accounts—such as Gmail or Yahoo—to conduct business-related communications after regular working hours or on weekends. Companies that do this must take steps to ensure that they properly compensate their non-exempt employees for any time they spend reviewing, responding to, or sending emails after their regular work hours.
Generally, employees need to be paid for time spent reading or responding to work-related emails. There are some defenses to paying for the time, but they only apply in limited circumstances. Failing to pay employees for time spent responding to after-hours email could result in a disgruntled current or former employee filing a lawsuit seeking compensation for time spent responding to emails after work hours. The lawsuits carry penalties that include double damages, interest, and the payments of the employee’s legal fees. They can be brought on behalf of the individual employee or on behalf of all current and former employees that had to respond to emails after hours for the last six years.
There are several ways to address the risks that after-hours email present. From a wage and hour perspective, the safest approach is to only permit exempt employees to have remote access to email. This solution may not be practical to all employers. If that is the case, the employer will need to develop a policy that requires employees to record and report time spent reviewing and responding to email after hours. The policy would have to provide the employees with a realistic means to record their time, whether through manual timesheets, the company's timekeeping system, or some other means.
If you know that non-exempt employees will regularly spend a certain amount of time per day checking email outside of work, it is essential in the current environment of wage and hour litigation to focus on avoiding liability.
This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.