It’s something we have all gotten used to, checking and responding to work emails during non-work hours. It helps cut down on the amount of work that needs to be done during the day, as well as increases the speed at which problems are addressed. This can be especially important for smaller companies who rely on each employee in order to run effectively. While blackberries and other hand-held devices can be a great tool for organizations, they can also lead to significant legal problems if employers don’t create guidelines around this kind of work. For exempt employees this is not a problem at all and is becoming more and more the norm. Once this trend begins to extend to non-exempt employees things begin to become a bit more tricky. Under the Fair Labor Standards Act, even if employees are not supposed to be doing work after hour, the fact that their emails to and from supervisors are time stamped holds the employer liable for time worked.

One provision in the Fair Labor Standards Act that can help employers with this is the “de minimis” exception. Under this clause, employers do not have to pay employees for time that is small enough to be considered trivial. The problem with this is that the clause does not specify how much time is trivial or distinguish between activities. Generally if the time is somewhere around five minutes you won’t have to pay, however once you begin going beyond ten it becomes less clear. While companies that provide communication devices such as blackberries are most likely to violate this law, any organization that uses email or cell phones to stay in touch are at risk.

Action Steps
The best contacts and resources to help you get it done

Update Policies

Overtime is mandatory, even if your organization has a policy against working extra hours.

I recommend: The best way to avoid situations such as this is to have a clearly stated and enforced policy regarding overtime. For information on employee handbooks visit
The Importance of Creating an Effective Employee Handbooks lens or go to the HRSentry Homepage.

Lead by Example

Often times when people receive emails or phone calls during off time they feel as if that is what they should be doing. It is important to make sure that supervisors don't encourage nonexempt employees to work by contacting them, even through email during off hours.

I recommend: Educating managers on the overtime laws and what constitutes paid working time. Have them encourage nonexempt employees not to bring work home and enjoy their time off. Visit the Department of Labor website to read their advice for "on-call" work.

Communicate Only as Needed

Keep communication to critical situations only.

I recommend: Often times we believe that whenever one little thing happens we have to notify everyone and get working on the problem asap. With nonexempt employees the laws don't change when things go wrong, keeping off hour communication limited to the most crucial situations will help get people into the habit of not working from home. When a critical situation does arise and nonexempt employees end up putting in some time during usual off hours, it is important to note that in payroll and administer the proper compensation.

Provide Communication Tools for Exempt Employees Only

Keep the work at work

I recommend: Distribute Black Berries and other communication devices to your exempt employees only. Keeping them away from nonexempt employees will make it harder for them to stay in touch while not working, making it less likely for them to work during off hours.

Enforce Your Rules

Learn to say 'stop'

I recommend: One of the biggest reasons people will work overtime is that it can be hard to tell someone to stop working and take a break. This is a crucial part of managing and should not be taken lightly. If an employee works late one day then have them come in late the next day, or leave early another. To view real timekeeping policy visit the University of Texas website. Note that overtime laws differ state to state so consult your state's laws before finalizing any policies.