Electronic communications, like email and texting, have done wonders for keeping us connected with friends and family and up to date on the world around us — all within literal seconds. But as texting has crossed over into the workplace and become a more common method of communication between managers and their employees, sending off that quick request or message can carry significant legal wage and hour ramifications.
Although this article is focused mainly on texting, email is closely connected and briefly discussed throughout as well. Here's what you need to know before sending that next message.
Key Legal Terms
To fully understand potential issues, let's first look at the Fair Labor Standards Act (FLSA) and the meanings of these specific terms and phrases:
1. Employee classification — exempt and non-exempt;
2. Hours worked — suffered and permitted.
Employee Classification: Employees are classified as either exempt or non-exempt, with the difference generally breaking down as follows:
- Exempt employees are salaried and ineligible for overtime pay when working more than 40 hours per week. They are typically in supervisory, managerial or executive roles.
- Non-exempt employees are paid hourly and eligible for overtime pay for any hours in excess of 40 per week.
Since non-exempt employees compose the majority of your staff and are the group most impacted by e-communications outside of work — at least from a legal and timekeeping standpoint where you need to ensure all hours and overtime are appropriately compensated — we'll mainly focus there.
Hours Worked: The next step is to make sure you understand how the FLSA defines "hours worked." Here is the exact definition found in Fact Sheet #22 from the Wage and Hour Division:
By statutory definition the term "employ" includes "to suffer or permit to work." The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place.
The FLSA Hours Worked Advisor is a handy resource for employers. Although it doesn't address texting and electronic communications directly, it offers additional guidance on what constitutes hours worked:
Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally hours worked. Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as "working off the clock."
It also lays out the responsibilities of employers:
It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee's work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time as hours worked.
Overall, properly tallying total hours worked and any resulting overtime is what we're after here.
When texting leads to or can arguably be classified as off the clock work, then employees aren't compensated correctly and FLSA wage and hour violations begin to stack up.
But what if you're just sending brief notes or reminders to employees — ones that require a quick yes or no answer and not the completion of job duties?
That's more of a gray area and somewhat open to interpretation and overall communication preferences. Ultimately, it's probably best to avoid excessive texting that can impose upon employees during their non-work hours.
E-COMMUNICATION DOS & DON'TS
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Legal Disclaimer: The information I publish is not legal advice but rather is intended to prompt a discussion on best practices in human resources. Further, federal and state laws are amended frequently and vary significantly from jurisdiction to jurisdiction. Therefore, the published information may not be current at the time that you read it or it may not be applicable to your jurisdiction. As such, you should not rely upon any of the published information without first consulting directly with Restaurant HR, legal counsel, and reviewing your local, state, and federal laws as well as any applicable industry practices and company policies.
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