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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.

17 Comments

  1. A C on August 6, 2018 at 3:51 pm

    If an employee in a management position is required to answer after hours and weekend calls from the lower staff, and is not on salary, Is it required to pay the management employee for the time they spent on each call?

    • Eugene Lee on August 7, 2018 at 11:31 pm

      That depends on the frequency and length of the calls. There’s no hard and fast rule about this that I’m aware of, I think it’s more of a case-by-case evaluation. If you only get a 2 minute call once every 4 hours, that’s probably not compensable. But if you’re on the phone for 30 minutes at a time and are getting several calls a night, that’s probably on-call time that you must be compensated for. And then there’s everything in between, of course. Feel free to give us a call at (213) 992-3299 and we’ll be happy to talk it over with you.

  2. Ann on June 25, 2018 at 2:27 pm

    If u get a text on your day off about a conference call and u text back that you are off. What is the amount of time you should get paid for that text?

    • edward helldane on June 27, 2018 at 8:22 pm

      There should probably be say 1min minimum, or whatever ‘minutes’ the employee self-reports, to make payroll easier, and for the law to remain in employees favor (it’s meant primarily to protect employees from abuse). Otherwise there would need to be a way to track the exact time; which could actually be done with modern tech, so long as the communication occurs through provided tools rather than personal media. Since the law requires for employers to be responsible for compensating for most work, it would fall on the employers to either provide those tools or refrain from engaging with employees if their time worked can’t be accurately tracked.

      Also, remember, the entire matter differs slightly depending on whether the employee is exempt or not. For non-exempt employees, any engagement/work for the employers benefit should be tracked and compensated for; and off-the-clock interactions should be kept to a necessary minimum (based on urgency). This has honestly been true since before the advent of smartphones or e-mail, and these technologies don’t change this in any way.

      Within recent history at least, it has never been okay for an employer to just show up at an hourly employees house with a casual work related question. Nor was it considered okay for them to just casually ring them up on their personal land-line phones to talk about work. They needed a really good reason to interact with employees while they were off-the-clock then, and they still do now, they just aren’t acting like good members of society anymore.

      If the question/problem can wait, you wait to ask it/deal with it while the employee is at work. Doing otherwise is not only extremely disrespectful, but it can easily cross over into a clear case of harassment if it occurrs regularly.

      Personally, I’m an hourly employee for a multinational corp, owned by a much much bigger company, which has started regularly distributing work information directly to off-the-clock employees rather than during workplace meetings. For a while now I have consistently forwarded those messages to HR asking why I’m receiving such information via my personal e-mail address (it’s not personal stuff like reference copies of a handbook or other info already discussed at work, or employee benefit info; it’s workplace instruction, training, or notifications of policy changes that I was not previously informed about but definitely affect my ability to perform the work I do for my employer). HR never answers the questions I ask, they instead ‘always’ avoid directly responding to my complaints/questions about off-the-clock work in writing. As though they want to be careful not to expose themselves to litigation for showing that they knowingly acting inappropriately.

      There’s no doubt about it, they’ve been acting very shady. I even have internal documents now that show that they’ve been giving managers instruction to encourage lower/hourly employees to participate in off-the-clock work, or to “hold them accountable” for failure to comply. And I doubt my employer is the only major player taking advantage of their ability to profit from their employees ignorance or willingness to just comply (it’s the easier path).

      Also, not long before these practices became more and more common, they aggressively pushed a ‘voluntary’ ‘internal arbitration and anti-class action lawsuit’ agreement on every employee they could. They didn’t exactly explain that it was voluntary, BTW. Such agreements as these, and NDAs during settlements, should be outright illegal… they set up our society to allow for unchecked abuse from the more powerful or wealthy party. Like an abusive husband threatening harm against their victim if they call the police or even talk publicly about their criminal behavior… If their victim complains to them directly, they’ll just beat them into submission, or ignore them. If they complain to somebody else, they’ll beat them for the offense.

      These are crimes and parties acting with criminal intent, society has a right to know about those in its midst that would victimize it’s members. These conflicts should be handled publicly as a rule; to ensure the behavior can’t go unnoticed, and to protect society from the occurrence of it’s rampant and endless repetition.

      *Sorry bout the length, I ended up saying more than I expected, but I’m gonna leave it.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

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

    So what were the results of these filings?

  8. 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.

  9. 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.

  10. 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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