Overtime Pay for E-mails? Debate Grows

E-mailing Off the Clock: The Downside for You?and Your EmployerABC News Photo Illustration
When you e-mail off-the-clock, there are downsides for both 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.

Among the law's protections is the requirement that hourly workers be paid overtime when they put in more than 40 hours a week, regardless of whether they have their employer's approval to do so. (Salaried workers often are exempt from receiving overtime pay.)

But now that it's so simple for employees to check their work messages after hours, Hyde said, "Where do you draw the line on compensable work? Is it 10 minutes? Fifteen minutes? Who knows?"

"Now the issue is if you have a BlackBerry or a PDA, are you working 24/7? You could be called at any time," said employment attorney John Robinson of Florida law firm Fowler White Boggs.

But, Robinson added, "The company's argument always is, 'Yeah, but you can go to the movies, you can go to Disney World, but you just have the cell phone with you."

The Recession's Impact

Apparently, the recession has only compounded the confusion.

"Now employers are running lean, mean, fighting machines," Robinson said. "They're expecting you to do more with less. Part of what's driving this is shorter decision cycles. And if you're not going to be [available] all the time, they're going to find someone who can."

For the conscientious wired worker who doesn't want to miss a beat, the before-bed BlackBerry check may seem innocent enough, said Hyde. But the 20 unpaid minutes a day you spend answering e-mail off the clock quickly add up. Over a week, that's 100 minutes. Over a year, more than 80 hours.

Understandably, labor advocates are concerned.

"If you aggregate all the workers [checking e-mail off the clock] and all the hours they do it, that's really a ton of money. It's very lucrative for employers," said Catherine Ruckelshaus, legal co-director of the National Employment Law Project, a non-profit that advocates for the rights of lower-wage workers.

In a perfect world, Ruckelshaus said, model employers would keep their work week down to 40 hours or less, not just for their employees' well-being but to help spread employment across a greater swath of the population. (Incidentally, this idea of spreading the employment love was one of the reasons the Fair Labor Standards Act included overtime provisions in the first place.)

But considering how far from perfect the employment world is right now, finding hourly workers who, like Isabel, are more than willing to put in a little extra time off the clock is a snap.

'The Price of Admission'

Alex, a recent college grad who's an hourly employee at a Web startup in the San Francisco Bay Area, spends about an hour a week answering work e-mails and promoting the company blog off the clock.

"I really can't complain because I know a lot of my old classmates are still looking for jobs," he said.

Lila (not her real name), a mother of two and part-time hourly worker for a Web company based in Silicon Valley, echoed a similar sentiment about working off the clock here and there.

"I feel incredibly lucky to have a part-time job that's interesting and challenging to me," said the marketing director, whose employer pays her phone's data plan. "I'm willing to do a bit of unpaid work and go the extra mile to help my employer feel good about their decision to let me work part time. I think of it as the price of admission for having the life balance I want."

Tabitha (also an alias), who works for a record label in Los Angeles and uses a company-provided BlackBerry, is a bit more stringent with her after-hours e-mail checking. She's enacted what she calls her "15-minute rule."

"I do an extra 15 minutes or so a couple times a week, max," she said. "It's usually when I'm working on a big project. They're time-sensitive, so I end up checking my e-mail after hours to see if somebody responded. At the record label, a lot happens between 6 p.m. and 9 a.m., and I like knowing what everyone is going to be talking about the next day."

Thirty unpaid minutes a week may not seem like a lot -- until you multiply that by 50 weeks and realize you're giving away 25 hours of work a year. For the full-time, $20/hour employee, that's $500 in gross pay sacrificed.

My advice to those giving their employer 30, 60 or 90 free minutes a week so they can keep up with the workload? Track your off-the-clock efforts, and make sure you leave the office early once in a while to make up for it. Don't settle for the short end of the digital stick.

This work is the opinion of the columnist and in no way reflects the opinion of ABC News.

Michelle Goodman is a freelance journalist, author and former cubicle dweller. Her books — "My So-Called Freelance Life: How to Survive and Thrive as a Creative Professional for Hire" and "The Anti 9-to-5 Guide: Practical Career Advice for Women Who Think Outside the Cube" -- offer an irreverent take on the traditional career guide. More tips on career change, flex work and the freelance life can be found on her blog, Anti9to5Guide.com.