CHECKING EMAILS AND TEXTS AFTER HOURS MAY BE COMPENSABLE TIME

Not too long ago a client manager and I were reviewing workplace policies relating to employee use of the employer’s computer system. Employers often have a number of policies or handbook statements on this topic ranging from protection of the employer’s confidential information, to prohibitions on sexual and other forms of unlawful harassment.

To complicate matters, over the last year the NLRB has issued several decisions focusing our attention on how some social media and computer use policies may result in violations of the National Labor Relations Act (NLRA) and possible NLRB action. [See my blog post titled, Your Employee Handbook and Work Rules Probably Violate Federal Law.] As employers strive to keep up on computer related issues, might there be an area of vulnerability lurking “under the radar?” If there is, I suspect it may have to do with electronic workplace communications, or more specifically, emails and text messaging. I’ve found that many employers fail to recognize federal wage and hour laws as an area of potential liability from employee use of emails and text messages after the work day concludes.

Of course this potential for liability is only in regard to non-exempt employees (employees who qualify for overtime pay for hours worked in excess of 40 in a work week). If you limit employee email access through smart phones, tablets or laptop computers only to exempt employees, you have largely foreclosed that exposure. Keep in mind, however, that managers sometimes communicate with employees through text messages sent to personal cell phones before and after regular work hours. For that reason, keep reading.

If your non-exempt employees regularly receive work related emails or text messages on company issued or personal smart phones, tablets or laptop computers and you have not considered this practice for its wage and hour implications, now is the time to do that. It certainly is not illegal per se for non-exempt employees to access managers’ email or text directives whenever sent. In fact, many non-exempt employees work in the field or travel such that the only effective means of communicating with them may be by electronic means. The issue is whether those employees receiving, reviewing, responding, etc. to those communications before or after their regular work hours constitutes compensable work activities for which they should be paid under federal law. If so, employers who do not address and regulate this activity may currently have no control over the number of hours worked by employees who regularly receive or review email and text message correspondence at all times of the day and evening. Worse yet, these employers have no idea how many unreported and unpaid hours exist until served with a wage and hour lawsuit (possibly in the form of a class action), or the Tennessee or United States Department of Labor walks through your front door for an audit following a complaint by a disgruntled employee.

There are a number of actions an employer should consider taking to minimize this risk. The first is to limit issuance of company provided smart phones and other portable electronic devices to only those non-exempt employees who need access to business related communications while away from the office or worksite. If this is a practice you must follow to conduct your business and you have not discussed how to control your potential liability for unreported overtime wages, skilled labor and employment counsel can help identify your specific areas of risk and develop policies and practices that can minimize it.

represent both employers and employees in litigation concerning terminations of employees for misconduct or unsatisfactory performance. On occasion, I am also asked to mediate such disputes. After 28 years, you begin to recognize where the “trigger events” leading to lawsuits lurk.

There can be no doubt that bad feelings and some litigation are unavoidable when employees are discharged, even under the fairest disciplinary processes. Yet, I am frequently struck by how some employers risk wrongful termination claims by failing to apply some basic litigation avoidance precautions when considering employee terminations. How an employer treats an employee through the disciplinary process is a critical piece of evidence in a trial or labor arbitration. Juries particularly and some arbitrators may be inclined to infer an improper or illegal motivation in a termination based in part on a belief that an employee was treated unfairly or with a lack of respect. With that in mind, I offer three very basic rules for handling situations that may result in an employee termination:

1. Don’t Ever Act Immediately. Immediate disciplinary decisions are often made out of anger, or at least the “heat of the moment.” Immediate decisions are typically made by a manager caught up in the circumstance and who may need to be removed from the process, or at least given some time to “cool off” and reflect. Make use of administrative suspensions with pay pending an investigation. Such suspensions typically need last no longer than 1 to 3 days. That temporarily removes the employee from the workplace without any financial loss to her and allows the employer time to investigate the grounds for discipline. One United States Circuit Court of Appeals recently held that an administrative suspension with pay is not an adverse action under federal employment discrimination statutes, so employers can be comfortable using that device in appropriate settings.

2. Two (or More) Heads Are Always Better: When possible, no one manager should hold unilateral authority to fire. While many employers require that a manager above the one recommending termination must approve the recommendation that still may not be an ideal arrangement. Managers from the same department may have the same attitude and possible biases against the employee under consideration for termination such that the higher level review is not truly independent and unbiased. If your organization has a trained human resources professional, she certainly should be involved at the outset. Even then, you want to avoid “rubber stamp” approvals. You need to be satisfied that your human resources employees have the authority and backing of management to voice opposition when merited. One practice I’ve seen work for small to mid-size employers is to round-table serious disciplinary issues among several equal level managers from various departments. This accomplishes two things. First, uninvolved and unbiased equals may be inclined to express appropriate reservations that may avert a poor and costly decision. Second, if that group approves a termination and someone one day must explain the decision-making process in a court or arbitration, the employer will appear much more deliberative and fair.

3. Treat Disciplined Employees with Respect. While terminated employees are usually upset about being fired, they do recognize when they have been treated with dignity and respect in the process. Sometimes, that alone may prevent a call to a lawyer. The “do’s and dont’s” under this rule are too many to discuss here; but three points come to my mind very quickly. One is to communicate with the employee throughout your investigation and do not keep him in the dark about the status of your investigation. You certainly should not share all aspects of your investigation, but do provide a timeline and advise where you are with respect to it. Another is to allow the employee to communicate his side of the story, at length if necessary. Finally, unless absolutely necessary, try to eliminate or at least minimize the indignity of office clean-outs during work hours and very obvious supervised escorts from the building. You certainly need to make an assessment of any real risk to company property or of potential violence in every termination event; but the “one size fits all” treatment of all employees as security threats really is not necessary. There are some simple practices seasoned human resources professionals and employment lawyers can recommend to minimize heaping insult upon injury, while still protecting company property.

The best way to avoid making poor decisions with employee discipline is to involve legal counsel early in the process. The small investment in advice at that stage will pale in comparison to the expenses and headaches associated with litigation.