The holiday season often results in an influx of employees exercising time away from the office to celebrate with loved ones. While some employers permit exempt employees to telecommute for these purposes, others might also inadvertently authorize non-exempt employees to put in some hours off the clock. However, employers should beware as certain employee tasks could constitute compensable “work time.” Such work time would necessarily reduce any elected paid time off, require compensation, and could even subject the employer to overtime payments.
The United States Supreme Court has defined the term “work” as being the “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” While Congress has clarified the scope of the Court’s definition of “work”, responding to emails, phone calls, and the like were not addressed by that legislative clarification. Unless and until Congress further clarifies this matter, court decisions must be relied upon to determine the scope of “work”. Recently, the 6th Circuit determined that compensable “work time” includes those off the clock duties performed by employees, which the employer knows or has reason to know about. Other courts have specifically decided that the use of electronic devices outside of work, for the purpose of work, should be compensable, subject to the employer’s knowledge.
Employers need to establish clear expectations for employees who are away from work but capable of addressing business needs, in addition to establishing a method of reporting time worked by employees expected to perform any employment duties outside of work. Because the analysis in this area of employment law can be complex, it is important to consult with an attorney for the development of policies or an examination of liability.
For more information on compensable work time, please contact Amy Foerster AFoerster@KreisEnderle.com
Attorney Amy Foerster’s practice areas include family law, employment law, and Native American/federal Indian law. She earned her Juris Degree from Michigan State University College of Law, where she received the Jurisprudence Achievement Award for Integrative Law and Social Work.