One of the biggest employer pitfalls that I regularly discuss is the failure to pay for all hours worked by an employee when (1) the employee is performing work after hours and off premises using social media, or some smartphone device, and (2) the employer doesn’t necessarily know about that work because it is being performed after hour and off premises. This age of technology has, in many cases, created the 24/7 work day and the virtual “office” that is no longer constrained by the walls and ceilings of your company’s office building.
Take, for example, the supervisor who sends work-related e-mails to one of her subordinate employees, and then that employee looks at and responds to the e-mails from his stadium seat at halftime of a Dallas Cowboys football game on a Sunday afternoon. Is that “work” that must be recorded and compensated?
There are two principles at play here. First, the federal Fair Labor Standards Act requires that covered employees must be compensated for all work performed. Second, however, is the “de minimus” doctrine, which generally allows employers to ignore (i.e., not compensate for) otherwise compensable work of a few seconds or minutes beyond the employee’s scheduled working hours. A very interesting decision was issued last week by a federal court in Florida that addressed the interplay between these long-standing principles and an employee’s rather common use of technology.
In Lewis v. The Keiser School (Southern District of Florida), plaintiff was a non-exempt employee at defendant’s South Florida campus for more than three years. She was paid a bi-weekly salary for a 40-hour workweek, and claimed in her lawsuit (among other things) that she was not compensated for sending lunchtime and after-hours e-mails. Relying on the di minimus doctrine, the court rejected that claim:
“Here, as even Lewis concedes, the emails were not lengthy and could not have taken more than a few minutes to draft and send. Yet, she insists that the emails are evidence she must have been doing more substantial work during her lunch breaks too. This argument is speculative and unsupported. Lewis offers no evidence of any other substantive work that she performed while off the clock. The time Lewis spent sending emails at lunch is de minimus as a matter of law”
The court made a point to note that the employee “clocked herself in and out and accounted for her own time”, and that she did not present any evidence that the company “forced her to clock out and continue working through lunch.” Thus, the court found that “it makes no sense to say that [the company] should have paid Lewis for drafting and sending emails at times that she herself indicated she was clocked out or taking lunch.
Employer Take Away: What should you as an employer take away from this development?
The problem arises when the time spent dealing with emails, or otherwise performing work outside the normal work day, is not truly de minimus, or, more importantly, when your company does not know whether or not it is de minimus. A few thoughts for consumption:
1. Make sure your policies (and practices) regarding working time, overtime, and the recording of hours worked are effective, accurate, and updated to reflect today’s realities and the realities of your employees’ positions.
2. Develop a strategy and policy regarding the common practice of “working through lunch”. No one wants to be George Orwellian to an extreme in the workplace, yet well-intentioned practices can come back to haunt you if the waiver of a lunch break is prohibited in your jurisdiction, or if your employee comes back years later and argues that he was really working through lunch and was not compensated.
3. As I’ve said before, give some thought to whether it makes sense to limit the number of employees (and positions) who have company-issued smartphones or who can have access to your company’s e-mails and systems from outside of the office. Perhaps there is a benefit to giving such devices and access only to those truly exempt employees, for whom you have fewer recordkeeping obligations when it comes to hours worked.