Ohio Wage And Hour Attorney Best Answer: Can my employer require me to respond to work-related emails when I am off the clock? What if it only takes a few seconds to read my work-related email, should I get paid? Am I entitled to compensation for the time I spend answering telephone calls from the office?
Our employment attorneys often hear complaints from employees whose are being forced to work 60 or 70 hours in a week. These employees ask, “Can my boss make me work that much?” or “Can I be fired for refusing to work overtime?” Unfortunately, it is not unlawful for employers to require its employees to work beyond the standard 40 hour work week (with the caveat that a boss or manager cannot engage in employment discrimination by loading up one employee’s hours in order to get him or her to quit. For example, a racist supervisor could not schedule the one Black employee for 75 hours per week while all of the White employees only have to work 40 hours or less.) That being said, both Ohio and federal law provide that employees should get paid for all of the time that they are working.
But, as it becomes more and more common for employees to be connected to their job, even outside of the workplace, through the use of technology like email and smart phones, the question of whether the two minutes an employee spends checking their messages is compensable. This becomes especially tricky when employees who issued a smart phone as part of their job, and not given any instructions on whether or not they can check their email while they are off the clock. Such an arrangement seems like an invitation to unpaid work.
As a result, the Department of Labor (“DOL“)has begun investigating the effect of proliferating technology and connectivity with the workplace to determine whether the Fair Labor Standards Act (“FLSA“) requires employers to pay for the time employees spend responding to emails while they are off the clock.
The answer seems obvious on its face – if a non-exempt employees performs work off the clock, the employer must pay them for that time. However, it isn’t always that simple. For example, the employee must demonstrate that the employer knew they were working off the clock. In situations in which an employee would take work home with them, this could become an issue if the employer could legitimately say it was unaware of the off-the-clock work. But of course, emails, text messages, and phone calls are different, because they leave a time-stamped record. This becomes an even more difficult for the employer if a boss, manager, supervisor if is the one texts and emailing the employee off hours, especially if there is back and forth communication between them over some time.
However, The DOL has long recognized that employers do not have to pay employees for “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes.” This is known as the “de minimus” doctrine. Given these guidelines, where would reading an email fall?
Recently, in Sandifer v. U.S. Steel Corp, Justice Antonin Scalia of the United States Supreme Court questioned the continuing relevance of the de minimus doctrine, pointing out that “the de minimis doctrine does not fit comfortably within the [FLSA], which, it can fairly be said, is all about trifles… there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood.” This point seems especially fair given the precision that modern technology allows us measure our time with. Moreover, de minimis time can quickly become anything but when one begins to aggregate the time. However, this does not mean the de minimus doctrine has been upended by the Supreme Court, as the doctrine remains codified under 29 C.F.R. § 785.47.
What is the takeaway from all of this? Employers should pay their non-exempt employees for all time worked, including time spent responding to emails, text messages, and phones calls during that employees’ off-time. While an employer can try to argue that the time is de minimis, this will be a difficult argument to make under these circumstances. After all, as anyone who works with email will tell you, the time it can take to read and respond to all of it is anything but de-minimis. Likewise, one only needs to look at sent and received records in an email to measure the time spent.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.