A common question asked by employees and employers alike is whether employees must be paid for time spent answering telephone calls and responding to emails after working hours. The answer to this question is generally “yes.” Under the general definition set out in all of the Industrial Welfare Commission (IWC) Orders, “hours worked” means “the time during which an employee is subject to the control of an employer, and includes all of the time the employee is suffered or permitted to work, whether or not required to do so.” (IWC Orders and DLSE Enforcement Policy and Interpretations Manual Sec. 46.1.) Time that an employee spends answering telephone calls or responding to emails generally falls within this definition.
It should further be noted, that an issue arises when an employee spends time that is insubstantial or insignificant beyond the scheduled working hours. Under the Fair Labor Standards Act (FLSA), de minimis time may be disregarded under certain circumstance. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946); Lindow v. United States 738 F.2d 1057 (9th Cir.1984).) Under Lindow, in determining whether otherwise compensable time is de minimis, a court must consider: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time, and (3) the regularity of the additional activity. Although this test was previously adopted by the California IWC, it is, at the time that this was written, under review in the California Supreme Court. (Cal. I.W.C. O.L. 1988.05.16.; see Troester v. Starbucks Corporation). Please see California Supreme Court docket number S234969 for updates on the Troester litigation.
Another important consideration is whether the employee in question is compensated for work that occurs after hours. For example, if the employee is considered exempt under California and federal law, then the employee’s salary will compensate the employee for all hours worked, including time spent on phone calls and emails after working hours. However, if an employee is a nonexempt—or misclassified by an employer as being exempt—and earning an hourly wage, then the employee’s regular compensation will not compensate the employee for the time spent working after hours. If the employee is nonexempt and earning a salary, then a more in-depth and particularized assessment will be needed to determine if the employee’s compensation is sufficient.
Employers are encouraged to put in place policies and practices that create clear guidelines regarding their expectations and pay practices surrounding these issues. It should also be noted that, even if an employer has a legally compliant policy, the policy will not protect the employer if it fails to enforce the policy or condones contrary behavior.
Employees who have not been compensated for time spent answering telephone calls or responding to emails may be entitled to compensation. Such compensation includes the time spent working for which the employee was not compensated. It may also include other penalties and interest stemming therefrom. A prevailing employee is further entitled to attorney’s fees and costs of litigation.
This article should not be construed as legal advice. It addresses general legal principles at the time it was written and should not be considered to be appropriate for an individual or entity’s particular legal issue without first discussing the particular facts of one’s situation with an attorney. For further assistance, please feel free to contact our firm to see if we can assist you.