Digital Dilemma

by Deborah Z Mark


Have you checked your email lately?  Or are you too busy texting to get around to it?

If you’re an employer, you certainly have the right to stay digitally connected as often (or as seldom) as necessary, or whenever the spirit moves you.  Do you realize that if you have employees who routinely utilize email and texts for business use, you could be opening yourself up to legal issues?

Employees with 24/7 access to email on their cell phones or other electronic devices have the potential to cause serious legal issues for employers

The FLSA requires non-exempt employees to be paid time and 1/2 for all hours worked over 40 in a work week, regardless of whether your company’s pay schedule is weekly, biweekly, or semimonthly.

Some states have additional overtime requirements based on hours worked in a day or consecutive days worked in a week.

Checking and responding to business related communications would be considered compensable time, and may bring employees over their allotted “regular” time and into overtime.  This is time that is not easily tracked or recorded, but that does not mean that you are not liable for paying overtime to any non-exempt employees.

Begin by classifying your employees correctly if they are going to be accessing work related communications around the clock

Consider allowing 24/7 access to the company email system and providing company cell phones only to exempt employees.  It will prevent future problems from non-exempt employees claiming they are owed wages for all those minutes and hours they spent away from the office reading and responding to “urgent” communications.

Yep. Digital dilemma.

Remember, even if employees work unauthorized overtime, they still must be paid in accordance with the law.  You don’t want to end up in court fighting a claim for back wages (and associated penalties).

Your company’s employee handbook is a great place to start when addressing digital communications.  Put a policy in writing and have employees sign to acknowledge that they have read, understand, and will comply with the policy.

ManageStaff is here to help you with that – just give your HR Rep a call.

If you prefer, you can always send an email.

Image: Stuart Miles/