A discussion of what type of work qualifies and what types of employees are eligible to earn overtime pay.
Now that is common for everyone over the age of about five years old to have their own cellphone and/or computer, information is always being sent and accessed 24 hours a day. The advancements in technology have caused many businesses to flourish, but at the same time, these improvements have changed what is expected out of employees, even when they are not at the office. If you're obsessed with your Smart Phone (like me) then you're probably checking it constantly. As many employers may require their employees to have their work email linked to their phone/issue a "work" phone, the question becomes: Is overtime due to you, the employee, for responding to work related emails after work hours?
Generally: When does the employer owe overtime?
Regarding overtime for email checking, the general idea is that overtime would only be due in these instances if you expressed to your employees that they were expected to review emails during off hours. Case law has also found for the employee where the employer didn't specifically tell the employee that he/she had to check email after work, but knew about it and didn't stop him/her.
Employee Protections: So, you're telling me I have been missing out on overtime?!
Although, the general rule is that employees must be paid for all time worked, including overtime (typically, any work over 40 hours in a week), certain types of employees are exempt from receiving overtime. The Fair Labor Standards Act (FLSA) lays out what types of employees are considered exempt and non-exempt from overtime. Advice: The FLSA lays out what types of employees qualify for overtime. To find out if you are an exempt/non-exempt employee click the link below.
Employer Protections: What is an employer to do?
It is not unreasonable for an employer to provide its employees with cell phones or require them to link work email to their personal phone. However, it probably is unreasonable for an employer to be forced to pay overtime to an employee who responds to non-urgent emails after hours. Therefore, an employer may put in place a policy that acts as a blanket prohibition against working "off the clock" without preapproval by a supervisor. Despite the present day culture of constant cell phone use and the difficulty that an employer would have in overseeing it, such policy gives an employer something to fall back on. Advice: I would suggest specifically communicating that employees are only expected to review emails during work hours if your company does not want to pay them overtime. Such language should be in writing, preferably in the employee handbook. Please contact us to review your handbook to confirm it spells out when overtime is paid and that it is in compliance with state law.
If you are an employee who is on call 24/7 you may be entitled to overtime pay that you are missing out on. Contact us now to see if you qualify as a non-exempt employee. If you own or manage a business and do not have an after hours cell phone use policy in place, contact us now so we can review your current hand book and update it accordingly.
Additional resources provided by the author
Whether an employee or employer, we would be happy to discuss your rights and potential course of action in greater detail – Please contact us at (508) 653-7162.
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