Recently ABC News reached an agreement with its writers not to compensate them for using their employer-issued Blackberrys and PDAs to check their e-mails after office hours. The decision posts an interesting question for Texas employment law : Does the routine check of e-mail after hours require overtime pay?
The Fair Labor Standards Act (FLSA) and Department of Labor (DOL) provide certain rules for dealing with off-duty, non-exempt hourly employees who must be on call or carry pagers or beepers while off-duty.
If an employer is going to require frequent, although short in duration, daily episodes of business activity, such as requiring an employee to regularly check more than one or two e-mails outside work hours, then an argument can be made that this is overtime work under Texas employment laws.
A Texas employment attorney can check the facts and determine whether in fact such activity is “deminimus” or insubstantial. Factors include the difficulty of recording the additional time, the amount of compensation for the time, and regularity with which the employees perform the additional work.
There are additional factors under both federal and Texas employment laws to determine overtime work. For example, many courts have held that working time increments of ten minutes per day or less are deminimus. Going back to ABC News, the writers were part of a union, but the Union did not have the right to waive the employees’ right to file an overtime claim. In today’s world, Texas employers must be held accountable for both salaried and hourly employees who conduct much of their work during off-hours using company issued equipment. Overtime pay may very well be required under Texas law.