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Should Workers Be Paid for Answering Emails After Hours? (2018)

In today’s high-tech world, a constant connection to the web and phone comes at a price for workers: all too often, the office comes home with you. A Pew Internet & American Life Project 2008 study entitled “Networked Workers: Most Workers Use the Internet or Email at their Jobs, but They Say These Technologies are a Mixed Blessing for Them”, noted the following:

  1. In recent years, workers have become more likely to check their email outside of normal working hours:
  2. 50% of employed email users say they check their work-related email on the weekends. Fully 22% say that they check their work email accounts “often” during weekend hours, compared with 16% who reported the same in 2002.
    34% of employed email users say they will at least occasionally check their email while on vacation; 11% say they do so “often.”

  3. One in five employed email users and half of Blackberry and PDA owners say they are required to read and respond to work-related emails when they are not at work
  4. Fully 48% say they are required to read and respond to email when they are away from work.

Some experts say that employers are getting a free ride on employees by not paying for these off-hours activities. An ABC News report, “Overtime Pay for E-mails? Debate Grows” quoted Catherine Ruckelshaus, legal co-director of the non-profit National Employment Law Project:

“If you aggregate all the workers [checking e-mail off the clock] and all the hours they do it, that’s really a ton of money. It’s very lucrative for employers”.

Others counter these concerns by pointing out employees shouldn’t be paid around the clock, 24/7, either. ABC News quoted John Robinson, employment attorney with Florida law firm Fowler White Boggs:

“Now the issue is if you have a BlackBerry or a PDA, are you working 24/7? You could be called at any time. . . . The company’s argument always is, ‘Yeah, but you can go to the movies, you can go to Disney World, but you just have the cell phone with you.”

One thing everyone agrees on is that the problem is growing as the US struggles with a jobless recovery and technology advances. Workers remain less likely to complain about after-hours work in order to hang onto scarce jobs. At the same time, employers trying to do more with fewer employees continue to squeeze more productivity out of workers tethered to Blackberries and email. ABC News quoted Alex, an hourly employee at a Web startup in the San Francisco Bay area:

“I really can’t complain because I know a lot of my old classmates are still looking for jobs”.

Nevertheless, a few workers have recently challenged the practice in the courts. According to a Wall Street Journal article, “Lawsuits Question After-Hours Demands of Email and Cellphones”, two recent lawsuits against employers T-Mobile USA Inc. and CB Richard Ellis Group Inc. involve novel legal claims that hourly workers should be paid for time spent responding during off hours to work messages on company-issued phones. In the case against CB Richard Ellis, a maintenance worker, John Rulli, is suing for back wages because he was forced to remain reachable during off hours via a company-issued Blackberry. Rulli’s lawyer, Larry Johnson, stated:

“This new technology allows employers to invade its employees’ lives by forcing them to work after hours without being compensated for the time they spend on the BlackBerry”.

Ultimately, it appears wage and hour laws have failed to keep pace with new technology and the problems created by it. It remains to be seen how the question of “what is work in a digital age?” will ultimately be answered, and whether it will be answered by the courts or the legislature, or both.

If you have questions about unpaid work after hours, talk to a lawyer.

13 Comments

  1. Troy on November 18, 2017 at 3:45 pm

    I can tell you that I get hit was 18 to 20 hour days plus having to carry my phone, computer and hotspot with me 24 hours a day. I end up being called in on weekends, holidays, during my vacation and during sick time. I don’t see a single cent of extra pay for my time or taking away from my sick and vacation time. There has to be a law to prevent this, because the company just basically owns me as a slave otherwise.

    • Eugene Lee on November 19, 2017 at 3:51 pm

      Troy, you may have a claim to be paid for “on call” hours, but the legal test for this isn’t simple. It sounds like there may be a lot more going on as well, like unpaid sick days, unpaid overtime, etc. Please give us a call and we would be happy to talk it over with you. (213)992-3299.

  2. SoupGuy on July 22, 2017 at 9:30 am

    Having been in management positions it has always been my understanding that employees are to be paid if the employer “benefits” from the activity the employee performs. For example, if a receptionist always comes to work 30 minutes early (she’s there early because of transportation issues, lets say) and the phone rings and she answers it “off the clock” then she is to be paid from the time she answered the phone. So, I’ve always established a policy of ensuring people are clocking in/out for anything related to work whether physically there or away from there. The problem could happen then that employees take work home and want to be compensated for doing their job at home… so a policy on that has to be established also.

    To the point of emails after hours…. as far as I’m concerned pay the employee… if you don’t want to then do not send them emails, especially on their personal email addresses. I know a company that sends performance appraisals on people’s personal emails for them to review on their off time. I say this should be paid or a complete NO, NO!!

    • Eugene Lee on November 8, 2017 at 12:47 pm

      Thank you Soupguy. I like the way you think. I’m sure this issue will come up more and more before the courts. We’ll see how the courts come down on all this.

  3. Cody on March 1, 2017 at 12:56 pm

    If you are a non-exempt employee, is it considered working if you check and respond to your blackberry after hours? Or make work-related phone calls on a personal device?

    • Eugene Lee on November 8, 2017 at 12:45 pm

      The answer is: it depends. Namely, how long are the calls, how often are they, are you required to take the calls, do you have to be near a computer or in a specific place during the call, etc. Depending on your answers, that time may be compensable – either the time spent on the calls and/or the time spent “on-call” waiting for the calls to come.

  4. Cindy Gray on March 11, 2013 at 8:27 pm

    can an employer require you to use your cell phone without compensation in the office because they have chosen not to have a land line?

    • Eugene Lee on June 2, 2015 at 8:40 am

      No. They are required by LC 2802 to reimburse you for work-related expenses. If you are required to use your cellphone for work, you must be reimbursed for it. If you decide to pursue a claim for LC 2802 violation, please note you are also entitled to seek attorney fees, which in most cases will dwarf the cellphone costs at issue.

  5. Ricaguzm on March 5, 2012 at 2:01 pm

    So what were the results of these filings?

  6. Indiana DUI on July 16, 2010 at 12:20 pm

    Hmmm interesting post. I think that employees should just be compensated salary for positions that require extra work above and beyond their hourly requirements, otherwise employees should avoid putting in that extra time.

  7. Lawsuit Loans on January 14, 2010 at 8:38 am

    I understand where you are coming from on this one, however, this is something that should be determined in the original employment contract. I believe that if it is a performance or commission based job, this shouldn’t provide additional compensation, however, possibly if it is a standard wage position with no incremental improvements for higher productivity.

    • Eugene Lee on June 2, 2015 at 8:45 am

      However, the vast majority of employees do not have a signed employment contract with their employer. That is because California is an at-will employment state, meaning employers are free to fire employees for any reason or no reason at all (so long as there isn’t an ILLEGAL reason for the firing, such as discrimination, harassment or retaliation). This makes most employers understandably reluctant to enter into written agreements with their employees, as the contract could cause a loss of the at-will employment status. Another problem is the unequal negotiation leverage that most employers hold over their employees, especially in a weak economy where jobs remain scarce. If employees were made to shoulder excessive work-related expenses, it could in many cases result in the employee effectively receiving less than the minimum wage for their work — i.e., a circumvention of minimum wage laws. That is a whole ‘nother debate for another time. At any rate, the issue is far from simple.

  8. Postergal on December 11, 2009 at 5:31 pm

    If the e-mails pertain to work then it must be paid.

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