Does your employment policy address text messaging, emails and voicemails?

By David McDowell, Rose Law Group

A recent spate of lawsuits under state and federal wage and hour laws raise issues about pay for non-exempt employees who answer text messages, emails, or voicemails after hours. Suits against T-Mobile, the City of Chicago, and CB Richard Ellis contend that non-exempt employees were required to respond to electronic communications after hours and were not directed to or required to record that time on their timesheets. Two of the cases were certified as class actions, which then resulted in multi-million dollar class action settlements in favor of the undercompensated workers. The City of Chicago case went to trial and the court found in favor of the City.

The Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) requires employers to pay non-exempt employees for all overtime hours worked – including any overtime spent emailing, texting, or on the phone. More importantly, employers are liable for failure to make these required overtime payments even if the employee fails to record the time and even if the time is in violation of company policy.

If the employer sends or receives an email or text message, or receives or places a call to an employee after hours that is related to the employee’s work, the employer is responsible for payment of any overtime incurred, even if that communication  is contrary to a written policy forbidding employees from working overtime by email, text, or phone. Because the employer received or placed that communication, the employer has knowledge of the overtime incurred and cannot avoid liability for failure to pay, even if the employee fails to record the overtime due to the prohibition against overtime.

Even in those instances where the employer did not initiate or receive the communication, but benefitted from it, the employer is responsible for the overtime incurred. If a non-exempt employee submits an assignment to the employer, places an order for fulfillment by the employer, or makes other communications which result in business for the employer, and the employer accepts the benefit of an after-hours communication, the employer is deemed to have constructive knowledge of the overtime and is, therefore, required to pay for it whether or not the time is submitted by the employee.

The impact of these cases is the need for all employers who regularly use text messaging, email, or voicemail to communicate with non-exempt employees after hours, who receive electronic communications from employees after hours, or who permit their non-exempt employees to submit assignments for the employer’s benefit to have a clear and unambiguous policy addressing after hours communications. A prohibition on all afterhours work is insufficient, if your employees have the tools to work after hours.

Rose Law Group’s employment department can help guide you through this process and help you develop policies to avoid problems and provide a defense should you get sued for employment practices.

Please contact David McDowell for more information or assistance.