So, If I Email An Employee After Hours I Have To Pay Them?
It is important to ensure that as an employer, you are paying your employees for all hours worked each pay period. A common issue cited by small business employees to the Wage and Hour Division of the Department of Labor is that they are ‘working off the clock’.
This can occur in several ways:
1. One is a situation where the employer expects work to be completed by an hourly employee and when the work is not done, the employee takes it home to complete it. Then the employee brings the completed project back to the clinic and they do not record the hours worked at home on their time worked for the week.
2. Maybe, it’s Sheryl at the front desk that has been helping with a marketing program and wants to do it where no one will disturb her, or your supervisor who writes those employee reviews at night while watching the kids. Everything seems to be fine until there’s a problem with Sheryl’s performance and suddenly, you, the manager are trying to explain to the Practice Owner why the employee feels she hasn’t been paid for all the work she has done and is underappreciated. And, there are wages that Sheryl feels she should be paid, according to the printed pages she gave you from the Fair Labor Standards Act Website.
4. Another example of times when an employee might ‘work off the clock’ is after they clock out for the day or for lunch. Another employee asks the first employee to help with work task. The employee spends a few minutes unpacking inventory, another few minutes explaining an invoice or helping in some other way, but it is not paid work time.
5. An employee is interrupted during his or her lunch to answer the phone or answer someone’s work questions. Remember, when an employee has clocked out for lunch or at the end of the day, they are off work.
6. Let’s add the Social Media layer. Your manager texts an employee about work when the employee is at home and expects to receive a reply. The Practice Owner has some questions and tends to send a bunch of emails at night and her ever ready Super Technician will respond whenever she can, at the grocery store, on her way home from her sister’s house and at the end of her day at home. The doctors on the weekend email the veterinary technicians about the cases and the team looks over the information the night before they come into the practice on Monday morning. So, is this work? AND, should it be paid? If it’s work and these are hourly employees, you better say yes.
“But it’s not just employers who give their hourly workers smart phones and demand after-hours accessibility who may have to worry. According to the U.S. Fair Labor Standards Act, even if an employer discourages hourly employees from responding to work-related messages off the clock, the company still could be on the hook for overtime wages.” According to Kevin Hyde, who’s vice chair of the Labor & Employment Practice at Foley & Lardner LLP
Recommendation – Think carefully and reduce down what is not necessary to be done outside the practice. Does that work really need to be done offsite? And if that answer is yes, then, accurately capture the amount of time and have a policy for recording and tracking these tasks. The tasks may be best done by a salaried position that does not have the same constraints as an hourly employee has in these situations.
Many times the employer is unaware that employees have worked ‘off the clock’ until they are involved in a Wage and Hour audit and it is brought to their attention. A suggestion made by Business and Legal Resources to help employers protect themselves from future wage claims and to encourage employees to note all the hours that they worked is to include a note at the bottom of each time card that says:
“I have received my paycheck and it is accurate for the hours that I worked for the pay period.” All time cards should be signed by the employee to affirm this statement.
Another suggestion is to include a note on each pay stub or envelope such as “If there are any questions or concerns about the amount of pay or hours worked, contact __________”.
Employers should have an area away from the work areas for employees to take their lunch and breaks. Ensure that employees are uninterrupted during the lunch. Once an employee has signed out for the day, they should leave the building. But, if you do request assistance after the employee is off the clock, be sure to pay them for that time.
Make it fair for your employees; pay them for their time. It’s as simple or as complicated as you want to make it.
Blog entries should not be considered legal advice.