Overtime Pay for E-mails? Debate Grows

E-mailing Off the Clock: The Downside for You?and Your Employer

I'm convinced there are just two types of workers: Those who clock out physically and mentally each evening and weekend, and those who check their work e-mail after hours.

A 2008 Pew Internet & American Life Project report found that 50 percent of U.S. employees who use e-mail on the job check their work e-mail on weekends and 34 percent do so while on vacation.

Isabel, a part-time hourly employee at a community college in Miami, is one of those workers. She spends at least 30 to 40 minutes each weekday checking work-related e-mail and answering calls off the clock, despite the fact she isn't paid for the time.

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"With BlackBerrys and other PDAs so prevalent, full-time and salaried staff are constantly communicating," she said. "If I don't check e-mails, I feel that I'm holding up processes, delaying decisions or out of the loop."

Unfortunately for employers, today's 24/7 work world and the proliferation of smart devices among lower-level workers has ushered in a new type of wage dispute: whether hourly employees who answer work-related e-mails and phone calls after clocking out for the day should be reimbursed for their time.

In July, several ex-employees of T-Mobile sued for overtime they claimed they were owed for being forced to reply to work e-mails after hours on phones provided by the company. A T-Mobile spokesperson said the company complies with wage and hour laws and doesn't comment on pending litigation.

Earlier this year, a maintenance worker sued property management firm CB Richard Ellis for wages he said he was owed for being required to check his company BlackBerry after hours.

In court documents, CB Richard Ellis admitted to giving some of its maintenance workers PDAs but denied the overtime complaints, saying that the worker's claim was beyond the statute of limitations and that the company believed it had acted in accordance with federal labor laws.

And in 2008, Verizon Communications was sued for overtime wages by a personal account manager (a.k.a., a customer service rep) contracted through an employment agency who had agreed to work "on call" 72 hours a week using a company phone. In court documents, Verizon denied the overtime complaint, arguing that the worker failed to notify Verizon of her overtime hours and that the company had acted in accordance with the law.

A Verizon spokesperson said the company does not comment on pending litigation.

'The Law Hasn't Caught Up'

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.

"We're seeing more and more litigation on precisely this type of issue," said employment attorney Kevin Hyde, who's vice chair of the Labor & Employment Practice at Foley & Lardner LLP, a law firm with offices throughout the United States. "It's a case where the law hasn't caught up with how people perform their jobs."

Passed in 1938, the Fair Labor Standards Act was initially written for factory workers who punched a clock and had no way to continue working after hours, Hyde said.

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