A recently enacted French law giving employees a legal right to ignore work-related emails after office hours is attracting international attention. And no wonder! The obligation to check email in the evenings and on weekends has become so entrenched that the idea of being allowed to unplug seems nothing short of revolutionary.
Here in the U.S., there is no federal law directly addressing whether workers must answer work emails after hours. There are, however, laws mandating that all working time be compensated. For non-exempt employees—i.e., employees who are entitled to overtime compensation—this can create a tricky situation for employers. Employees may not be tracking the time they spend reading and responding to email outside of office hours. This can easily result in employer liability for unpaid overtime, even if the time spent on afterhours work is relatively short. For example, if a non-exempt employee who works 40 hours a week in the office also spends 20 minutes, three nights a week, answering emails from home, that employee is now working 41 hours per week and is entitled to time and a half for the 41st hour.
Unfortunately, some employers are under the impression that if an employee is answering emails after hours voluntarily, the time need not be compensated. In other words, these employers believe that if employees work from home at night not because they are required to but because they are ambitious and wish to seem accessible to their bosses, the time spent is not compensable. But that is not the case. All work must be compensated. And employers should bear in mind that email, by its nature, creates a written record of time worked. The exact amount of time spent may not be clear, but if an email was received and read at 9p.m. and a reply sent at 9:15p.m., a Department of Labor investigator might reasonably assume that the employee performed work for 15 minutes on the evening in question.
Accordingly, employers are well advised to maintain clear policies regarding after-hours work, including time spent answering emails, as well as clear policies regarding overtime. Employees should be instructed that all time spent working is to be included in their time sheets, regardless of when or where the work was performed, and regardless of whether it took five minutes or several hours. They should also be instructed that working overtime requires pre-approval from a supervisor. Likewise, supervisors should be directed not to send employees off-hours email unless truly necessary and, further, to be mindful of the extra hours it might cause the employee to work, possibly incurring overtime obligations.
Since it is unlikely that the U.S. will follow Frances’ example in banning after-hours work email any time soon, U.S. employers need to function within the reality of today’s workplace, whether that workplace is the office or an employee’s kitchen, commuter train, or any other place where they feel compelled to respond to that persistent ping in their pockets. Employers who understand this reality and create policies to address it lawfully and appropriately can avoid liability for unintended labor law violations.