I know, I'm constantly harping on the importance of use policies, whether they address e-mail or social networks or company-issued equipment. We all know (hopefully) the importance of defining when personal e-mail can be used for company purposes or on company time, as well as whether company e-mail can be used for personal purposes.
But do employers consider how the "always-on" culture, made possible by the ever-increasing number of mobile devices we use for business, can impact their liability under wage and hour laws? In a law.com piece published last week, Michael Sands and Soo Cho explain how this new litigation risk has emerged.
Under the Fair Labor Standards Act, non-exempt employees are entitled to overtime pay at the rate of time and a half, for any hours more than 40 that they work in a given week. So now that those employees can write, check or respond to work related e-mail at all hours, how are employers supposed to determine what constitutes compensable overtime?
Sands and Cho point out that Department of Labor regulations indicate that dealing with e-mail during off hours is not compensable as overtime if it is de minimus, or "uncertain and indefinite periods of time involved of a few seconds or minutes duration." Though there is no hard and fast rule, courts have held that as much as daily 10 minute periods is still considered "de minimis."
Another issue that may arise, the writers say, is whether the use of mobile technology during off hours would warrant applying a variation of the "continous workday rule," which states that an employee's workday begins when he or she puts on a uniflorm and ends when the uniform is taken off. If courts determine that dealing with e-mail is a "principal activity" in a given employee's job, they could then decide that the workday begins with the first check of e-mail and ends with the last.
It's certainly something worth considering when crafting a company's e-mail use policy.