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Are Your Employees Checking Their Email At Home? Be Careful.

Whether surfing the web on their smartphones or checking their email on their laptops, people today are more connected than ever. But, while these devices have certainly made life much easier in many respects, they have also helped blur the lines when it comes to whether a person is considered "working" under the law -- and whether this person is therefore entitled to overtime pay.

For example, if employees are checking their emails or responding to work-related texts while at home, should they be paid for this time? Or is this simply something they should be expected to do? Well, the answer is, "it depends."

What does the law say?

Under both Maryland law and the federal Fair Labor Standards Act (FLSA), employers are required to pay non-exempt employees -- i.e. hourly employees -- at least 1.5 times their usual hourly rate for every hour they work over 40 hours in a given workweek.

Alternatively, salaried employees -- who usually fall under the classification of "professional," "administrative" or "executive" -- are generally considered exempt from the overtime rules and therefore are not entitled to overtime pay, regardless of how many hours they may be working each week.

Given these laws, it likely comes as no surprise that employers can expect exempt/salaried employees to respond to emails outside of normal working hours -- and they will not be paid for this time. But, non-exempt/hourly employees (the classification in which most workers fall) may need to be paid for their time if their employers want them answering emails at home.

In fact, employers may need to pay non-exempt employees for any of the following:

  • Checking/responding to emails
  • Answering phone calls
  • Responding to text messages

And if these activities put the employee over 40 hours in any given workweek, the employer will need to start paying overtime wages.

What if the employer didn't know it was happening?

One thing to keep in mind, however, is that the employer is generally only responsible to pay for this extra work if the non-exempt employee can show that the employer knew the employee was working off the clock.

Therefore, if the employer is legitimately unaware that the employee is doing this work outside the office, then the employer may not have to pay overtime. However, if the emails, texts or calls include the employer, manager or supervisor, it will be very difficult to argue lack of knowledge given that these types of correspondence are time stamped and electronically logged.

Another option: the de minimus rule

Employers could also try to argue that the time the employee spent responding to emails falls under the de minimus rule, which states that "insubstantial or insignificant periods of time beyond the scheduled working hours [..] may be disregarded."

However, the de minimusrule typically only applies to activities that take a "few seconds or minutes." If they take more than that, it will be increasingly difficult for an employer to argue that they don't need to pay overtime to non-exempt employees.

What does this all mean? Simply put, employers need to be careful if they believe their non-exempt employees are answering emails or phone call outside of normal working hours. After all, they could be on the hook for paying a great deal of overtime.

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