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Wage and hour class actions have been built upon seemingly minor issues. How about this one: Should non-exempt employees be paid for time spent after hours reviewing business-related emails on their PDAs?



legal updates

March 2009

Wage & Hour Update

Do After-Hours Emails Create

Employer Wage Liability?

By Christopher W. Olmsted

Wage and hour class actions have been built upon seemingly minor issues. How about this one: Should non-exempt employees be paid for time spent after hours reviewing business-related emails on their PDAs?

The question is of growing relevance. It is increasingly common for companies to distribute PDAs to employees. Gadget-oriented employees also use their own PDAs for business as well as personal reasons.

And some employees can’t resist reading and responding to emails after hours. The use of some devices has been jokingly compared to crack cocaine addictions.

The General Rules

The general rule under both California and federal law is that non-exempt employees must be paid for all hours worked. Does reading or responding to work-related emails after hours fit the definition of hours worked? There is no definitive answer. Technology has raced ahead of the law. But general labor law principles lead some legal experts to answer “yes,” or at least “maybe.”

In California, the Industrial Wage Orders include an expansive definition of the term “hours worked.” It means “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

Under federal law, hours worked is similarly defined. The Department of Labor’s guideline states: “The FLSA defines the term ‘employ’ to include the words ‘suffer or permit to work.’ Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally hours worked. Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done.”

Making Sense of It All

What can be gleaned from these general definitions? First, checking emails, even after hours, is probably “work.” The employee is devoting time, thought, and thumb-power to company communications. Furthermore, neither the state nor federal definitions depend on whether the work is performed before, during or after regular work hours.

Second, the time spent on emails might be compensable even if the employer does not specifically ask, or expect, the employee to do the work. Merely knowingly allowing the employee to check emails may be sufficient.

The federal regulations place the onus on management to control when work is done--or not done. “It is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed,” state the regulations “It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

By merely distributing PDAs to employees without controlling after-hours use, the employer may be seen to have allowed employees to check emails off the clock. As the federal regulation suggests, merely promulgating a rule against checking emails after hours may not be sufficient.

What if the task only takes one minute? Or thirty seconds? At a certain level, compensating for such time is impractical. The Federal Ninth Circuit, which includes California, has ruled that employees cannot recover for otherwise compensable time if it is “de minimis.” In a 1984 case titled Lindow v. United States, the court disregarded seven to eight minutes spent daily by employees who voluntarily reported to work early to relieve outgoing employees.

Quoting an earlier U.S. Supreme Court case, the Lindow opinion states: “When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”

California’s Division of Labor Standards Enforcement (“DLSE”) has stated an intent to follow the de minimis rule.

A minute here or there checking emails might fall within the de minimis doctrine. On the other hand, spending a substantial amount of time on after-hours emails, in excess of a few minutes, may be considered compensable.

Practical Tips:

So far we have not seen a flood of wage and hour litigation involving PDAs. Many employers are taking precautionary measures. A few possibilities include:

  • Consider giving PDAs or granting after-hours email access to exempt employees only.
  • If non-exempt employees are given PDAs, but the company wishes to avoid after-hours compensable time, consider whether it is possible to (1) implement a policy prohibiting after hours use; (2) enforce the policy by monitoring usage or employing technological solutions to rule out such usage; and (3) impose consequences for violation of policy, while compensating the employee for actual time worked, and pay overtime where required.
  • If business necessities require after-hours emailing, implement a policy designed to (1) limit after-hours use; and (2) record time spent and pay overtime where required. Management and exempt staff should limit or avoid sending emails to non-exempt employees after hours. Note that Outlook and other email software permit the sender to schedule the delivery time of an email.

    There are other possibilities, and until the courts apply wage and hour rules to the use of PDAs, it would be prudent for employers to implement restrictive policies and practices relating to the use of these devices.

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