Should employees be paid for time spent after hours reviewing business-related emails on their PDAs? The question has probably not occurred to most employers. But wage and hour class actions have been built upon lesser issues.
The general rule is that non-exempt employees must be paid for all hours worked. If an employee is “suffered or permitted” to work, even though the employer has not instructed or requested that he do so, the time is compensable working time. The rule does not depend on whether the work is performed before or after regular work hours.
Plaintiff attorneys might argue that it doesn’t matter whether the employer expected the non-exempt employees to monitor after-hours emails or whether the employees did so on their own initiative. Time was spent on work-related emails and the employees should be compensated, they would argue.
Social norms play a role. Late phone calls and meetings may be seen as an intrusion, but few see sending an after-hours email as a violation of etiquette. Add to that the seemingly irresistible impulse driving some people to constantly check emails on their PDAs. The use of some devices have been jokingly compared to crack cocaine addictions.
Attorneys in various legal forums have been discussing the topic lately. The Wall Street Journal’s Law Blog recently addressed the topic here. The topic has been discussed on other internet forms, including here and here.
So far there have been no reports of wage and hour litigation involving PDAs, but it would be prudent for employers to take precautionary measures. Some commentators recommend that employers require employees to obtain permission prior to using the PDAs after hours. Others recommend giving PDAs to exempt employees only. All would agree that employers should not ignore the issue and they ought to devise an employee policy regarding the use of PDAs.
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys