36 MAY / JUNE 2019 Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Working Off the Clock Are after-hours emails/texts/calls compensable? HUMAN RESOURCES Claims under the Fair Labor Standards Act (FLSA), which sets standards for minimum wage and overtime for nonexempt employees, have been on the rise in the past few years in both the private and federal enforcement arenas. One of the most common claims is that the employer failed to pay nonexempt employees for all hours worked. The FLSA requires employers to pay nonexempt employees for all hours they “suffer or permit” an employee to work. In other words, if an employer requires or allows an employee to work, the time is generally considered hours worked and must be paid. Any time spent in physical or mental exertion controlled by an employer and primarily for the benefit of the employer and its business must be paid in accordance with the minimum wage and overtime requirements of the FLSA and applicable state wage and hour laws. This includes work that occurs outside of regularly scheduled working hours. If the employer knows or has reason to believe that the work is being done, the employer must count the time as hours worked. 29 C.F.R. § 785.112. With today’s technology, after-hours work emails, texts and cell phone calls are a common occurrence in the working world. The question many employers ask is whether nonexempt employees must be paid for the time they spend checking or responding to those emails, texts or calls. For example, an employee responds to work-related emails while at home. There was no requirement or expectation that the employee respond to the emails after hours, but the employee did so regardless, and the email responses were sent or copied to the employee’s manager. The employer (through the manager) knew the employee was working off the clock and, therefore, the employer should pay the employee for the time spent working. This is true even if the employer had a policy prohibiting off-the-clock work. [Note: The employee can be disciplined for not following the employer’s policy, but the employee should be paid for the time worked.] What if the time spent by the employee was insignificant or trivial? Under the FLSA, there is an exception for “de minimus” time, but that is a limited exception. The de minimus rule or exception was first announced by the U.S. Supreme Court in Anderson v. Mt Clemens Pottery Co., 328 U.S. 680 (1946), and provided that if the work was only a few seconds or minutes beyond working hours, then such trivial work (insubstantial or insignificant time) could be excluded from working time (not paid). The de minimus rule is explained in the regulations at 29 C.F.R. § 785.47. Following the announcement of the de minimus exception, many courts held that working time of less than 10 minutes was trivial and did not have to be counted as working time. However, the de minimus exception has been challenged in recent years and is the subject of much litigation. There is no precise amount of time that is considered de minimus. The inquiry is highly fact specific on a case-by-case basis. Courts generally look at: • The administrative burden of tracking (practical difficulty in recording the additional time);* • The total amount of time involved (a few seconds or
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