Q&A: Ensure proper pay for after-hours emails

Question: I have a dedicated, hard-working employee, a Production Lead, who always stays on top of their work, often checking and responding to work emails after hours but not recording the time. What is my obligation, if any, to pay them for this time?

Answer: Your organization is potentially facing exposure for unpaid wages and overtime. The federal Fair Labor Standards Act (FLSA) requires that if you as an employer “suffer or permit” work to be performed, even when not requested, you must pay for the time. In the case of work-related after-hours emails, anything substantive or recurring (even if the recurring task is very brief) should be paid. Sounds easy enough, right? But practically speaking, when it comes to nonexempt employees, tracking this time can be quite burdensome for employers. Even with the proper timekeeping policies in place, there’s a risk of employees not accurately or consistently reporting these activities, which can ultimately result in claims against the employer.
 
Claims of unpaid overtime generally have two elements: (1) an employee worked unpaid overtime, and (2) the employer knew or should have known of the overtime work. A federal district court in Illinois recently found there were enough facts, including details of after-hours work emails and evidence the supervisor expected the employee to conduct work outside of her normal shift, to warrant the case going to trial (Garcia v. Draw Enterprises III, LLC, ND Ill, Nov. 2018).
 
In today’s “always on” work culture, it’s not uncommon for employees to feel the need to check work emails after hours. Even if they’re not required to, we often hear employees say they find it difficult not to check emails after hours. So, how can employers manage this? We recommend you use caution in issuing electronic devices and when granting work email access on employee-owned mobile devices. This should be allowed only when there is a legitimate business need. Some employers apply technology to block after-hours work email access. For nonexempt employees (those eligible for overtime), adopt a policy prohibiting off the clock work, making clear that all time spent engaged in work-related duties, including time spent after hours checking and responding to work emails, text messages, and phone calls must be recorded through the appropriate timekeeping system as time worked for pay. Finally, make certain your supervisors are familiar with your policies and enforce them consistently.

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