Legal

The Email Curfew for Wage-and-Hour Compliance

By Jon Hyman

Nov. 20, 2013

As a company you’re doing everything you can to attract and retain young talent, including implementing a broad BYOD policy enabling your Gen-Yers to connect their iDevices to your network. If those employees are non-exempt under the wage-and-hour laws, how do you prevent them from claiming overtime wages for the off-the-clock time they spend receiving, reading, and sending work-related emails?

Have you heard of an email curfew? Me neither, until I read this article in the Kansas City Business Journal (h/t Today’s General Counsel). Here’s the concept:

The law requires employees to be paid for work that their boss either knew or should have known they were doing. If the boss had no reason to know or suspect employees weren’t complying with the curfew, they could be protected.

In other words, you draft a policy (either stand-alone, or as part of your technology or BYOD policies) prohibiting non-exempt employees from emailing off-duty.

At least one management-side lawyer, quoted in the K.C. Business Journal article, is skeptical of using these curfews as a wage-and-hour compliance tool.

“While an email curfew is a clever idea that might in certain circumstances be justified, it typically isn’t going to be much of an answer.” That’s because in most cases it’s unenforceable or could potentially anger clients who might find other companies that are willing to respond to requests 24/7.

I’m not nearly as cynical about the effectiveness of an email curfew to stave off wage-and-hour issues for off-the-clock emailing. If you tell employees not to read, send, or otherwise work on emails off work hours, and an employee disobeys, that employee is subject to being disciplined. Yes, you still have to pay him or her for the “working” time (which would be at a time-and-a-half premium if the typical work week totals 40 hours), but punishing one employee for violating an email curfew will go a long way to deterring the many from future violations.

The more difficult issue, however, is balancing the need for instant access versus the cost of paying your employees for that responsiveness. This business decision will vary from company to company (based, in part, on a company’s culture), and will dictate how you react to this compliance idea.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. You can also follow Hyman on Twitter at @jonhyman.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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