Electronic Handheld Devices

Off the Clock

If a non-exempt employee reads or responds to work e-mails outside of regular work hours, the employee is considered as performing work. The real question is whether or not this time is compensable under applicable wage and hour laws. The Fair Labor Standards Act (FLSA) provides, for example, that an employer must pay for work that it “suffers or permits” to be performed. This usually boils down to whether or not the employer knows that the employee is performing the work. Generally speaking, if the employer is not aware that the work is being performed, then it has not “suffered or permitted” the work to be performed, and it is not compensable. However, there are many permutations to this inquiry. For instance, if the employer issues an electronic handheld device to an employee, it could be argued, depending on the circumstances, that the employer was not only aware of the possibility that the employee might use it after hours, but actually intended the employee to read and respond to e-mails after hours. Also, it is important to keep in mind that, when e-mails are sent and received on an electronic handheld device, they do not disappear into the ether. The device itself keeps a record of the work performed. Thus, for example, if a supervisor sends an e-mail to a non-exempt employee after hours, that fact will be documented on the device. Of course, the mere fact that a supervisor sends an e-mail to a non-exempt employee after hours does not, in and of itself, establish that the employee performed work after hours.