By: Ralph R. Smith, 3rd, Esq.
Your public entity employer supplies i-Phones and other computer related technologies to keep your employees connected to the office even after normal business hours. It is Saturday night, and you need an urgent answer to a pressing question. You email one of your low level managers. He hears the “bing’ on his i-Phone, and sees your email. You are anticipating an immediate response from the employee. But, instead, the employee emails that he will respond to the question when he is back at work on Monday.
Is this a sufficient answer? In all likelihood, not in the USA for any employer, public or private, but what about France? Well, thanks to a recently passed law there, known affectionately as the “Right to Disconnect Law,” French employees have the right to tell their employers that a response can wait until Monday. The new law requires French employers with more than 50 employees to commence drafting polices that limit work-related technology usage outside the office.
Now, would a law like that have any chance of passage here in the USA? Likely not, but employers of all kinds are wise to understand the significant legal issues that arise from employee use of work related technologies while performing employment services on such devices outside of the workplace and after the normal work day.
In our example, if the employee actually responded, would the time spent crafting the answer constitute compensable work time for the employee in having to respond immediately? It is indeed possible, and that would depend on whether the employee is exempt or non-exempt. If non-exempt, the employee is required to be paid for all time spent in providing work related services. So, if that is the case here, the next question would be, how does the employee track such time, and does this public employer have policies in place directing how this non-office work time is to be reported for wage and hour purposes? And, if the extra time causes this employee to exceed 40 hours of work during this work week, are you the public employer obligated to pay an overtime rate for this excess time worked?
Unfortunately, most employers (both public and private entities) lack the necessary policies to address these kinds of questions, and that is the key lesson all employers in the USA can learn from this recent French law. Employers here in this country should, like their brethren in France are now required to do by law, begin formulating policies on how situations like the above will be addressed so you can avoid potential legal problems that can arise in these situations. Whenever hourly non-exempt employees perform any kind of work for an employer’s benefit, federal and state wage and hour laws require payment of compensation for that time, and if the time worked results in an over 40 hour work week, then overtime obligations could arise. Just as importantly, the employer needs to ensure that such time gets tracked properly, and having polices in place that alert employees on their obligation to report, and on how to actually report such time, are a must if employers want to avoid potential wage and hour problems in this area. No one wants a wage and hour investigator showing up at their doors, and it only takes one complaint from just one employee in this type of circumstance to raise the possibility of such an occurrence, even if you are a public employer.
In sum, while technology is a wonderful tool for today’s business world, it can cause you unexpected legal peril in these kinds of situations, and staying ahead of such dangers with well-crafted legal policies is the best way for all employers to avoid such lurking problems.