Tuesday, October 13, 2015

Can Employees Get Paid for Checking Their Email During Lunch?

We have often remarked that the invention of the smartphone has been both a blessing and a curse. While we have the power of the internet at our fingertips at all times, that can make us feel that we have to respond to emails and other messages at all times of the day and night. The pressure to respond to emails and other messages, even off-the-clock can make employees believe that they are always working, and should be paid.

We recently reported on the wage claim of a number of Chicago police officers who responded to messages while off duty on their department issued Blackberrys. That case is currently still pending in court. Along the same lines, a group of Comcast technicians recently sued the company, arguing that they should have been paid for working during their lunch hour because they were checking and responding to emails during this time. They argued that Comcast violated the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act by not paying them for this “work.” 

The Fair Labor Standards Act, Minimum Wage Law, and Wage Payment and Collection Act require employers to pay employees for all hours that they spend working. Employers are sometimes required to pay employees for time spent “on call,” where the employee is not actively working but might be expected to work at any moment. Whether the employer must pay an employee for this time is dependent upon a number of factors, the most important of which is how much freedom the employee has. If the employee’s personal life is only minimally restricted during the time spent on call, then the employee probably will not have to be paid during this time. If the employee’s personal life is significantly restricted, however, an employer must pay his employee for this time spent on call. 

In this case, the judge ruled that the technicians were not significantly restricted during their lunch period, and therefore were not entitled to be paid for this time. The judge found that Comcast did not have a policy requiring the technicians to monitor and answer emails during lunch. Although employees sometimes received emails from Comcast during their lunch periods, there was no evidence that they were required to respond to these email while they were not on-the-clock. 

However, the court implied that had the technicians been required to monitor and respond to emails during lunch, this would have restricted their freedom enough that they would have had to have been paid.  

As we have discussed, the Illinois Attorney General, the state legislature, and the U.S. Department of Labor have been cracking down on employer wage practices, with special attention to off duty work like that at issue in the Comcast case. It is more important than ever for employers to have clear policies on work outside the scheduled work day. This is especially true when employers provide communication devices to their employees, or give them 24 hour access to the company email system, thereby creating the expectation that employees will read and respond to messages. Any activity of that kind that generally exceeds ten minutes in a day is likely going to be considered work for wage claim purposes.