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To Email or Not to Email?

Limiting an employee's digital access can decrease an employer's legal liability, attorney Jennifer F. DiMarco writes.

April 3, 2012
Related Topics: Legal Compliance, Unions, Technology and the Law, Wages and Hours, Legal, Technology

It seems that the culture of always being "on" was systematically turned off late last year for approximately 1,150 union employees at Volkswagen AG in Germany. Volkswagen workers who complained of feeling burned out can rest easier now that their BlackBerrys will sleep when they do. They will receive e-mails only from 30 minutes before their shift starts through 30 minutes after it ends.

Volkswagen is not the first company to tackle the problem of what is now seen as a blurring of the line between work and home due to an employee's ability to be available 24/7 via a digital device. Henkel, a British company that manufactures laundry detergent, announced an e-mail "amnesty" for its employees between this past Christmas and the New Year's holiday, telling employees to send e-mails only in "emergency" situations. More significantly, Atos SA, a large international IT company, has announced that it will ban e-mail communication among its 75,000 staff members by 2014. Instead, Atos employees will be at "in-box zero" and begin using instant messaging and a "collaborative Facebook-style tool" to communicate with one another.

Volkswagen's decision to restrict its e-mail usage may not only affect employee morale, but such measures could also go a long way to limit potential exposure for employee claims of unpaid overtime. Employers that provide employees with perpetual access to e-mail via Blackberrys and smartphones can be at risk for nonpayment of so-called "off-the-clock" work that employees perform but cannot easily record and therefore, an employer may not properly compensate. Labor laws in many states and the Fair Labor Standards Act require employers to pay nonexempt employees time and a half for each hour worked in excess of 40 hours each week. However, many employers improperly classify employees as exempt (often unknowingly) and do not monitor off-the-clock work because they are under the incorrect assumption that such employees are not entitled to overtime compensation. Other employers are simply unaware that their nonexempt employees are performing off-the-clock work until they are faced with investigations launched by the Department of Labor or a class action lawsuit seeking damages for thousands of hours of off-the-clock work that their employees say they were required to perform to fulfill their job duties. Employees who stay digitally plugged in to the office as a matter of course to either complete assignments or to simply monitor ongoing work present a host of legal issues for today's employer.

It's easy to understand why businesses may want to have employees available 24/7: Many firms have round-the-clock global operations, they are trying to preserve high customer service ratings and they face intense competition. But ignoring overtime laws can lead to liability and potential judgments that could cost employers millions of dollars. What's more, employee engagement can suffer when workers are tethered too tightly by an electronic leash of late-night and weekend email checks.

So what's an employer to do? First, organizations must properly classify employees as exempt or nonexempt. Employers must also review and audit their personnel policies relating to overtime and properly train employees about what constitutes compensable overtime work and how to record it, whether it is performed onsite or remotely and via a digital device. Taking steps like those taken by Volkswagen and other companies not only assists in clearly defining what compensable work is, but also debunks the belief that employees must always check their email and work when their employer may not expect or require them to do so. Instituting policies that only provide exempt employees access to the employer's email system is another way to decrease potential liability related to allegations of unpaid overtime. Finally, employers should consistently meet with exempt and nonexempt employees so that employers remain plugged in to their employees' perception of what is required and expected once they leave the office. Communication is key to an employer's ability to stay ahead of problems that can result from its employees' performance of unrecorded, off-the-clock work.

Jennifer F. DiMarco is an associate at law firm Mintz Levin practicing employment law in the firm's New York office. She represents employers in federal and state court proceedings and before administrative agencies, including the Equal Employment Opportunity Commission and the New York State Division of Human Rights.

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