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Jan 11, 2016

Off-duty review of email may trigger overtime

Q&AWage and Hour 

Q: If we require a non-exempt employee to monitor and respond to email during her off duty time, do we have to pay her for that time, including any overtime that may be triggered?

A: Generally yes. If you expect an employee to monitor and respond to email as part of their job, that activity would generally be considered integral to their work and therefore compensable. The only exception would be whether the time could be considered “de minimis,” meaning that the time is too insignificant and difficult to track. For example, if the employee is only occasionally asked to monitor email and the activity does not equal a significant amount of time (e.g. less than five minutes), then you may be able to show that it’s de minimis and therefore not compensable. However, if monitoring to email is an ongoing expectation of the employee’s job, it’s likely that the time spent will be more than de minimis and thus must be compensated. Assuming that the time is compensable, keep in mind that you must determine whether overtime is also owed. If the number of hours worked exceeds 40 in a workweek, then you must compensate at the overtime rate (keep in mind that daily overtime may also apply in California and Oregon). 

Make sure you have a clear policy regarding whether or not employees are allowed or required to monitor and respond to work emails off-duty. If you require non-exempt employees to monitor and respond to work email when off-duty, ensure the employee is tracking her time correctly. You may want to create a set amount of time the employee may spend performing those tasks when off-duty or even review whether it is necessary for the non-exempt employee to monitor work email when off-duty. For more information on compensable work and overtime calculations see our Legal Guides, “Compensation for Pre-Shift and Post-Shift Activities” and “At a Glance: Overtime”.

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