Should Workers Get Overtime For Answering Emails After Hours?

By Alexia Elejalde-Ruiz
Chicago Tribune.


Jeffrey Allen would answer his work BlackBerry during Thanksgiving dinner, during his son’s soccer match, on any number of Saturday afternoons.

The phone would buzz with work-related texts, emails and calls from the time he woke until he headed to bed, and, with it always in reach, he would respond.

“I just saw it as part of the job,” said Allen, 51, a Chicago police sergeant.

But it was not a part of the job he was paid for, Allen alleges in a class action lawsuit against the city of Chicago filed five years ago that heads to trial next month. He and about 50 officers who have joined the suit seek overtime pay for off-duty hours spent monitoring and responding to work emails and phone calls on their company-issued mobile devices.

Anyone familiar with the ping of a late-night email, a weekend call from a boss or a mid-dinner glance at a text message has felt the inescapability of work in the age of smartphones. But while constant connectedness has become the norm, it has also become a source of overtime litigation, and attorneys say that could increase under a proposal from the Obama administration to make millions more salaried Americans eligible for overtime, including many in managerial positions.

“As managers, they are more likely to be checking in during off hours,” said Phillip Schreiber, a Chicago-based employment lawyer at Holland & Knight who represents businesses and is not involved in the police suit.

The new overtime rule proposed by the Labor Department last month would raise to $50,440 the minimum salary an employee must make before he or she can be classified as exempt from overtime, which would be up from $23,660. The government estimates that would extend overtime pay to nearly 5 million salaried workers in a range of professions, from store managers to staff accountants, who currently are exempt under “white collar” provisions. The salary threshold doesn’t affect certain workers, including teachers, outside sales representatives and certain hourly computer professionals.

More overtime-eligible workers means greater risk of litigation and greater need for employers to establish clear policies mandating that such employees not field work-related communication on their mobile devices when they’re off the clock, unless they’re authorized by a supervisor, Schreiber said.

“In addition to having a policy, you have to have training,” Schreiber said. “And you don’t penalize employees who don’t respond to emails or texts off hours, because they’re not supposed to.”

In response to overtime concerns, the Labor Department plans to seek public comment next month on the use of smartphones to work off hours and could subsequently propose a new rule or guidance on the topic.

Under the Fair Labor Standards Act, employers are responsible for paying overtime when they know or should know that an employee is working after hours, even if the employee does not say so or file an overtime claim. Some obvious clues: a late-night email from a daytime employee, or a project that was unfinished at the end of the day Friday that turns up finished first thing Monday. Time stamps make it difficult to not know.

Some employees may prefer to work off the clock, because that’s their work style or they want to impress or get ahead. Millennials in particular, who rarely part from their phones, may find it difficult to resist the reflexive tendency to check and respond as emails come in, said Brad Karsh, CEO and founder of Chicago-based JB Training Solutions, an employee development company.

“They’re very goal-oriented: Getting through my emails at 10 tonight makes my day tomorrow easier,” Karsh said.

Yet even if employees are working during off-hours voluntarily and seemingly enthusiastically, employers shouldn’t trust that they won’t sue down the road, said Douglas Hass, a Chicago-based employment lawyer with Franczek Radelet P.C. who represents management in compensation cases. When people get fired, or angry, or fall into financial hardship, they can quickly change their tune.

“You could end up losing the business over not making those kinds of arrangements,” Hass said. “Once you’re supporting multiple people, it’s not a smart risk.”

Allen’s case could be a cautionary tale for employers. Allen felt he had found his calling when he was assigned to supervise a money laundering team in the Chicago Police Department’s Bureau of Organized Crime. He didn’t mind the extra hours he put in on his company-issued BlackBerry because it was a prestigious post with opportunity for promotion, and he was driven to succeed, he said.

An hourly employee, he was eligible for overtime but never filed for it in relation to BlackBerry use, as it was implicitly understood in the unit that that wasn’t done, he said.

But when Allen was transferred from the bureau to a district job with lesser status, the payoff of prestige and potential career advancement that motivated him to be available at all times evaporated, he said. His attorneys have calculated, based on his phone records, that during one 28-day period he spent 720 minutes, or 12 hours, on his BlackBerry on off-duty work-related phone calls. That doesn’t include reading and responding to emails.

“I could not have done the seizures or the work I did without the BlackBerry,” said Allen, who is now a tactical sergeant. “But I need to be compensated now for the time that I put in, because the consideration that I was intending them to give me was taken away from me.”

One of his attorneys, Paul Geiger, said the case is simply about paying officers for the work they do.

“The ones in the elite units are absolutely expected to work part of the time for free, and that’s illegal,” Geiger said.

The city’s law department said it is inappropriate for them to comment on the specifics of active litigation. But in general, “the city believes this suit is without merit and that the Chicago Police Department has an established and utilized process for officers to request and receive overtime compensation,” spokesman John Holden said.

The police department had no written policy on off-duty BlackBerry use when the lawsuit was filed in May 2010, Geiger said, but it published one a few months later that stated employees were not obligated to carry their devices or respond to them while off-duty. An updated policy issued in 2013 states employees are not to use their devices while off-duty at all unless a supervisor directs them to perform work immediately and authorizes overtime pay for it.

The lawsuit heads to a bench trial Aug. 17.

Because many such cases were settled, getting a judgment could mean Allen v. Chicago sets a precedent for overtime lawsuits related to smartphones, said Laura Bacon, a Chicago-based employment lawyer with Nixon Peabody focused on advising clients on commercial litigation and labor issues.

Bacon recommends companies get in front of the issue with written policies to which employees must consent, given the expense of defending against such suits.

The emphasis on overtime vigilance comes as employees also increasingly seek flexible work arrangements, which often rely heavily on smartphones for working remotely, time that can be difficult to accurately record, Bacon said.

That’s not to say every glance at the work phone rings up a bill. Some off-duty actions, like taking 30 seconds to scan a two-line email or a minute to answer a phone call, can be deemed so trivial that a court won’t consider it, Hass said.

But taking 10 minutes to read a memo can be overtime-worthy, and if the boss is one to pepper you with 40 short emails in a day, it can add up, Hass said. Employers have to figure out how to track employees’ smartphone usage when they’re not on the clock so that they can compensate them appropriately, he said.

“It’s naive to think no one is going to check their email after work,” Hass said.

Companies’ overtime policies also should include a disciplinary component so that there are consequences, like lost privileges, if employees consistently work overtime without authorization, Hass said.

Employers could pull back company-issued smartphones or cut back remote working arrangements if they feel they can’t adequately monitor their time, and some might limit remote access to remove the temptation altogether, Hass said.

In 2011, Volkswagen AG cut off corporate email between 6:15 p.m. and 7 a.m. for 4,000 employees in Germany. Director of communications Carsten Krebs said it has been “a huge success.”

“The employees are very happy with the new policy,” Krebs said. “They can spend more time with their families, they like the new work-life balance.”

But Kelly Goldsmith, assistant professor of marketing at Northwestern University’s Kellogg School of Management, believes the solution lies not in technology but in a company’s culture.

“If you really want to shut down the workaholics, you have to do it firm-wide by setting that example,” she said.

At JB Training, Karsh tries to instill that culture at his office.

He said he tells his employees that he may send them emails at weird hours because it fits with his schedule, but they are not expected to check or respond to emails once they leave work.

Usually, he said, people don’t need to monitor their email but want to, perhaps out of curiosity, or boredom, or it gives them a feeling of worth.

To help them disconnect, Karsh said he once paid a workaholic employee $100 not to check email during vacation. The company, which has 11 employees, also has an email buddy system in which vacationing employees have their work email checked by their colleagues and are only alerted if something urgent comes up.

Karsh, who employs some salaried workers who earn less than $50,000 and therefore could qualify for overtime under the Labor Department proposal, said he may institute a formal policy on after-hours smartphone use if the rule is adopted. He doubts people can break the smartphone habit on their own.

“We can’t separate work and life,” he said. “If it’s going to happen, it has to be mandated.”

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