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:

Employee classification — exempt and non-exempt;

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 your 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

Below are some basic etiquette rules to follow when communicating electronically with your team. While most of these are geared toward non-exempt employees in an effort to avoid FLSA wage and hour violations, many of these tips are good to follow when communicating with any employee, colleague, or client via either email or text.

• DO update the employee handbook and policy guidelines to clearly reflect your stance on off the clock work, reporting of uncompensated hours, texting and electronic communications, including zero tolerance for harassment or discrimination proliferated via electronic means. You can customize the employee handbook template to include this verbiage as you see fit. See Internet Usage under the section, Employee Privacy and Personal Activities as well the section, Wage and Hour Rules.
• DO have employees track and submit for reimbursement any and all time worked beyond their usual schedule, including any time spent working from home, attending meetings or trainings, and responding to texts, calls and emails. Mobile time and attendance trackers can simplify this process.
• DO use the email scheduling feature for those messages that you want to send right away and check off of your to-do list, but that don’t require immediate action on the employee’s part. The employee can then review them during their next shift and won’t be tempted to respond during non-work hours. Here are step-by-step instructions for scheduling emails in Outlook and Gmail. Texts can be scheduled as well, so they arrive during an employee’s normal work hours. Some phones come with a built-in text messaging scheduler, but there are plenty of apps to help with this also.
• DO supply on-site computer or tablet workstations designated for employees to access company email during each shift.
• DO consider restricting or fully eliminating remote access to company email so as to discourage employees from logging in during off-duty hours.
• DO discourage employees from regularly sending texts to supervisors or managers, unless it is emergent in nature. Otherwise, direct them to use just one electronic form of communication (i.e. usually company email) to streamline and track conversations.

E-Communication DON’Ts

• DON’T send texts to employees when they are off the clock, unless it is emergent, time-sensitive or a previously agreed way to communicate. Examples may include issuing a security or lockdown alert, seeking coverage for a sick employee, notifying them of a last-minute scheduling change or sending them their weekly schedule. Virtually everything else can wait to be discussed in-person or be sent via scheduled emails (or texts) for review when at work.
• DON’T encourage employees to sync their company email to their personal phone as an added safeguard against them checking in while off the clock.
• DON’T send long text messages, when you do use texting to communicate. Keep them short, succinct, and professional and avoid abbreviations and emoji overload.

Texting is quick, convenient, and widely accessible in our day-to-day lives thanks to our love of smartphones — all reasons why it’s so tempting to bring it into the workplace too. While it may have occasional uses, think twice before making texting your go-to for communicating with your team.